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CR.RA/240/2000 8/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 240 of 2000
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 ?
=========================================================
SANJAY
RATILAL SHAH - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
YM THAKKAR for
Applicant(s) : 1,
MR DC SEJPAL, ADDL.PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 17/02/2010
ORAL
JUDGMENT
Feeling
aggrieved and dissatisfied with the impugned judgment and order
rendered by learned Additional Sessions Judge, Panchmahals at Godhra
on 13.6.2000 in Criminal Appeal No.22 of 1995 whereby the learned
Additional Sessions Judge while dismissing the appeal upheld the
judgment and order of conviction rendered by learned Judicial
Magistrate First Class, Lunavada on 7.6.1995 in Criminal Case No.254
of 1987 whereby the applicant who was original accused in said
criminal case came to be convicted for the offence punishable under
Section 16 r/w.Section 7 of the Prevention of Food Adulteration Act
(‘PFA Act’, for short) and was sentenced to undergo R.I for two
years and fine of Rs.3000/- and in default of payment of fine, R.I
for six months, the applicant original accused has challenged
the legality and validity of his conviction by preferring this
revision application under Section 397 r/w.Section 401 of the
Cr.P.C.
The
prosecution case in nutshell is that Food Inspector (‘FI’, for
short) Mr.K.A.Patel visited the shop of the applicant accused on
dated 22.1.1987 situated at Shahera town. The FI collected sample of
turmeric powder, and when the sample was analysed by the Chemical
Analyser, it was revealed that the sample was not in confirmity with
the standards laid down under the Prevention of Food Adulteration
Rules (‘PFA Rules’, for short). It was also revealed that the
applicant original accused No.1 was found present in the shop
when the sample was collected by the FI and the owner of the shop
was original accused No.2 Ratilal Chandulal Shah. That the sanction
was accorded by the competent authority to launch criminal
prosecution against both the accused, namely, the applicant
original accused No.1 and co-accused No.2 Ratilal Chandulal Shah.
Accordingly, complaint was filed against both the accused in the
Court of learned JMFC, Lunavada by the FI, which was registered as
Criminal Case No.254 of 1987. Initially, the trial Court framed
charge at Exh.90, to which the accused did not plead guilty.
Thereafter, vide order below application, Exh.111, the charge came
to be amended on 31.5.1995 and the accused did not plead guilty to
the amended charge as well. Considering the evidence on record and
the submissions made on behalf of both the sides, the trial Court
recorded conviction of the applicant original accused No.1 for
the offence punishable u/s.16 r/w.Section 7 of the PFA Act and
recorded acquittal of original accused No.2 Ratilal Chandulal Shah,
owner of the shop. The original accused No.1 who came to be
convicted by the trial Court challenged his conviction by preferring
Criminal Appeal No.22 of 1995 in Sessions Court, Panchmahals at
Godhra and the learned Additional Sessions Judge vide judgment and
order dated 13.6.2000 dismissed the appeal and confirmed the
conviction and sentence recorded by the trial Court.
I
have heard the learned advocate, Mr.Y.M.Thakkar, for the applicant
original accused No.1 and learned A.P.P., Mr.Sejpal, for the
respondent State.
Learned
advocate, Mr.Thakkar, for the applicant submitted that as per the
prosecution case, at the time when the sample of turmeric powder was
collected, at that time, applicant original accused No.1 Sanjay
was present and in his presence the sample was collected by the FI.
The original accused No.2 Ratilal Chandhlal Shah was arraigned as
co-accused on the ground that he was owner of the shop. It is
submitted that if the charge, Exh.90 is considered, it is stated in
the charge that at the time when the sample was collected by the FI
from the shop, at that time, original accused No.2 Ratilal Chandulal
Shah was present, and in his presence, sample was lifted. It is
submitted that thereafter the trial Court recorded evidence adduced
by the prosecution. After the prosecution concluded its evidence,
the trial Court recorded further statements of both the accused
u/s.313 of the Cr.P.C. and when the criminal case was posted for
pronouncement of judgment, at that time on behalf of the
complainant, an application, Exh.111 was presented before the trial
Court for alteration of charge to the effect that the charge should
be read that at the time when the sample was lifted, accused No.1
Sanjay was present. The said application came to be allowed on dated
31.5.1995. It is submitted that thus, the material alteration was
made in the charge by the trial Court wherein the alleged main
accused was treated as abettor and the alleged abettor was treated
as main accused. My attention was drawn to sub-Section 4 of Section
216 of the Cr.P.C. and submitted that in such situation, the trial
Court should have directed trial afresh and, thereafter, the
judgment should have been pronounced.
4.1 Learned
advocate, Mr.Thakkar, for the applicant accused No.1 submitted
that considering the evidence of FI, it is quite clear that there is
outright violation of Rule 14 of the PFA Rules, in the sense that no
evidence is adduced by the FI as to who, how and when the glass jars
wherein turmeric powder was collected for the purpose of sample were
cleaned and dried. It is, therefore, submitted that the
non-compliance of mandatory provisions contained under Rule 14 would
be sufficient enough to acquit the applicant accused.
4.2 Learned
advocate, Mr.Thakkar, for the applicant accused further
submitted that considering the evidence of FI and the relevant
provisions of the PFA Rules, it is clear that the FI was not
possessing requisite qualification.
4.3 Ultimately,
it is submitted that the revision application may be allowed and the
impugned judgments rendered by the trial Court and by the first
Appellate Court be set-aside and the applicant original accused
No.1 be acquitted of all the charges levelled against him.
Learned
A.P.P., Mr.Sejpal, for the respondent State vehemently opposed this
appeal. It is submitted that the powers vested in this Court u/s.397
r/w.Section 401 of the Cr.P.C. are very limited. In the instant
case, there is a concurrent finding of two subordinate Courts to the
effect that all the mandatory requirements laid down under the PFA
Act and the PFA Rules have been duly and fully complied with. It is,
therefore, submitted that the contentions raised on behalf of the
applicant about non-compliance of mandatory requirements, is not
required to be considered.
5.1 Learned
A.P.P., Mr.Sejpal, for the respondent State further submitted
that in this case, after the charge was altered by the trial Court,
none of the accused requested the trial Court to permit further
cross-examination of any of the witnesses examined by the
prosecution. That, therefore, the trial Court cannot be said to have
committed any irregularity which would vitiate the proceedings.
5.2 Ultimately,
it is submitted that the revision application may be dismissed.
I
have examined the record and proceedings in context with the
submissions made by the rival sides.
At
the outset, it is required to be considered that the prosecution
case, as it stood, was to the effect that at the time when the FI
lifted sample of turmeric powder, at that time, applicant
original accused No.1 Sanjay was present in the shop and the shop
was owned by original accused No.2 Ratilal Chandulal Shah. In the
aforesaid background, if the initial charge framed by the trial
Court at Exh.90 is considered, the situation seems to be otherwise,
in the sense that, the original accused No.2 Ratilal was described
as the person who was present in the shop at the time when the FI
lifted the sample. On the basis of such charge, the entire oral and
documentary evidence was adduced by the prosecution and the trial
Court recorded further statements of both the accused under Section
313 of the Cr.P.C. When the trial Court posted the criminal case for
pronouncement of judgment, on behalf of the complainant FI, an
application was tendered before the trial Court at Exh.111 for
alteration of charge, requesting that the charge may be altered to
the effect that at the time when the sample was lifted by the FI,
accused No.1 Sanjay was present. It appears that said application
came to be allowed by the trial Court on dated 31.5.1995. However,
it is true that both the accused were asked as to whether they
pleaded guilty to the altered charge or not and none of them pleaded
guilty. Thereafter, the trial Court rendered the impugned judgment
and order recording the conviction of the applicant accused No.1
dated 7.6.1995.
In
this respect, considering Section 216 of the Cr.P.C., it is true
that the powers are given to the Courts to alter or add to any
charge at any time before judgment is pronounced. However,
considering sub-Section 4 of Section 216 of the Cr.P.C., if the
alteration or addition to the charge is such, which would prejudice
the accused, the Court may either direct a new trial or adjourn the
trial for such period as may be necessary. As provided under Section
217 of the Cr.P.C., whenever a charge is altered or added to by the
Court after the commencement of the trial, the prosecutor and the
accused shall be allowed to recall witnesses. Thus, in the instant
case, considering sub-Section 4 of Section 216 r/w.Section 217 of
the Cr.P.C., there seems to be justification in the submission made
by the learned advocate Mr.Thakkar for the applicant original
accused No.1 that great prejudice was caused to the applicant
original accused No.1 when the charge was altered and by way of the
alteration, the role attributed to individual accused in the initial
charge came to be changed.
Over
and above this, if the evidence of FI is considered, it transpires
that according to him, sample of turmeric powder came to be
collected in three clean and dried glass jars. In his
cross-examination, he stated that at the time when he visited the
shop, the jars were carried by him. In this connection, learned
advocate Mr.Thakkar for the applicant accused relied upon a case
of State of Gujarat Vs.Bhupendra N.Mehta reported
in 2000(1) GLH 679. Perusing
the fact of the said case, it appears that there was no specific
evidence about sample bottles were dried and cleaned. In that case,
FI in his evidence stated that the sample was poured in three dry
and clean bottles. This Court observed that this cannot be said to
be due compliance of Rule 14 of the PFA Rules and came to the
conclusion that no specific evidence about the sample bottles being
dry and clean was adduced.
9.1 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 above discussions, I am of the opinion that in the
instant case, there is non-compliance of mandatory requirements laid
down under the PFA Rules. When such is the situation, I do not find
any necessity to consider other contentions raised on behalf of the
applicant regarding qualification of the FI etc.
In
the result, in light of the above discussions, I am of the opinion
that the revision application deserves to be allowed and the
impugned judgment rendered by the trial Court which came to be
confirmed by the first Appellate Court deserves to be set-aside.
For
the foregoing reasons, the revision application is allowed. The
impugned judgment and order rendered by the learned Additional
Sessions Judge, Panchmahals
at Godhra on dated 13.6.2000 in Criminal Appeal No.22 of 1995
whereby the judgment and order recording conviction of the applicant
original accused No.1 Sanjay Ratilal Shah by learned Judicial
Magistrate First Class, Lunavada on dated 7.6.1995 for the offence
punishable under Section 16 read with 7 of the PFA Act and the
sentence awarded to the applicant thereunder came to be confirmed by
the learned Additional Sessions Judge, Panchmahals at Godhra in the
aforesaid criminal appeal are set-aside. The applicant Sanjay
Ratilal Shah is acquitted of the charges levelled against him. Fine,
if paid, be refunded to him. His bail bond shall stand cancelled.
Rule is made absolute accordingly.
(J.C.UPADHYAYA,
J.)
(binoy)c
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