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CR.MA/6560/2008 5/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 6560 of 2008
IN
CRIMINAL
APPEAL NO.586 OF 2010
=========================================================
SANJIV
MEHTA - Applicant(s)
Versus
BABU
PRATAP VAGHJIBHAI THAKKAR & 5 - Respondent(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI for
Applicant(s) : 1,
None for Respondent(s) : 1 - 5.
MS. C.M.
SHAH, ADDL. PUBLIC PROSECUTOR for Respondent(s) :
6,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 12/04/2010
ORAL
ORDER
(1) The
original complainant, Junagadh Mahanagar Palika, Junagadh has
approached this Court under Section 378 of the Code of Criminal
Procedure,1973 praying for leave to file appeal challenging the order
of acquittal dated 31st
March,2008 passed by the Learned Judicial Magistrate First Class,
Junagadh in Criminal Case No.7271 of 1996, whereby the Court has
acquitted the accused-respondents hereinabove of the charge of
committing offence punishable under Section 16 of the Prevention of
Food Adulteration Act, 1954 (hereinafter referred to as PFA Act ).
(2) This
Court (Coram: S.R.BRAHMBHATT,j.) on 25th
March,2010 after hearing learned advocate for the applicant, called
for record and proceedings for perusal so as to reach this Court on
or before 9th
April,2010 and the matter was kept to be placed on board on 12th
April,2010. Accordingly today after perusing the record and
proceedings and hearing the learned advocate for the applicant, this
Court is of the view that the leave itself is required to be refused
for the following reasons:-
(3) Short
facts leading to filing of this proceedings i.e. application for
seeking leave to appeal and appeal deserve to be set out as under:
(4) The
original complainant- Food Inspector in discharge of his duties on
15th
September,1995 at about 9:00 O’clock in the morning visited M/s.
Majestic Provisions Store and found accused no.2 vending the edible
items called Masala, Piper mint, biscuits etc. After notifying his
intention to collect the sample food article known in vernacular as
Special
Alchie
Raspatti,
in presence of Panch Witness
, he purchased the said food article in its packet. After sealing it
and affixing signature etc. on the said food article in accordance
with law, one part of the sample food article was sent to the public
analyst and remaining two parts were sent to the Local Health
Authority. The report of the public analyst indicated that the food
article was found to be having Sacrene as one of the ingredients as
well as colouring agent and did not mention the batch number, lot
number etc. on the packet. Thus, it was found to be misbranded and
hence the prosecution was required to be lodged, which was lodged
after obtaining sanction from the Local Health Authority.
(5) The
Court has noted that during the Trial, the accused no.1 had passed
away and hence the case qua him was abated. The accused no.2 was the
person who in fact was vending at the place. Accused no.3 is a firm
which is responsible for production of the said Raspatti namely M/s.
New Ashok Khari Center. Accused nos.4 and 5 were roped in as partners
of the said firm. The Court, after recording number of lacunas in
the case of the prosecution, recorded acquittal vide its order dated
31.3.2008, which is impugned in the present appeal and leave to
appeal. The Court has perused the deposition of Food
Inspector-original complainant at Exh.44. In his cross-examination,
he admitted that accused no.2 informed him when he visited the shop
that he did not happen to be the owner of the shop. He also admitted
that the sample was purchased in packed condition. He also admitted
that the packing had not been broken from anywhere. He also submitted
that the notice was issued to the vendor only. He admitted that
Exh.67 is containing signature of one L.L. Raval as Local Health
Authority and no date is mentioned thereunder. He admitted that this
Exh.67 did not bear any office
seal. The date of sanctioning
the prosecution is 18.7.1996. He pleaded ignorance with regard to
Shri L.L. Raval being only Senior Drugs Inspector and not Local
Health Authority. He pleaded ignorance with regard to suggestions
made in respect of Shri L.L. Raval in other case, where it was said
that Shri Raval who has acted as the sanctioning authority did not
have any authority to sanction lodging of prosecution. The Trial
Court has appreciated these aspects and appreciated that while
recording the deposition of Shri
L.L. Raval, who was examined at Exh.169, he admitted that he was
holding additional charge of the post of Local Health Authority. Now
this fact is proved and when the sanctioning authority is said to
have no due authority to sanction prosecution as he lacked the
statutory power to sanction prosecution on account of he not being
appointed statutorily, he Could not have sanctioned the prosecution.
This deals a serious blow to the case of the prosecution. However,
apart from the aforesaid serious lacuna, the Trial Court has also
recorded lacuna in respect of the food article not been misbranded in
asmuchas, the said food article is nowhere figuring in Appendix-B and
it was, thus a proprietary item, which was not required to be
containing the batch number, lot number etc. on its packing.
(6) In
view of the aforesaid facts and circumstances of the case, when
sanction to lodge prosecution itself was found to be lacking in
asmuchas the sanctioning authority namely Shri Raval did not have
statutory authority to order prosecution. The case of the
prosecution was, therefore, standing on a edifice, which did not have
any base. The order of acquittal,
therefore in my view did not suffer from any infirmity so as to call
for any interference under Section 378 of the Code of Criminal
Procedure,1973. Hence the leave itself is refused. The application
is disposed of. As the leave is refused, the appeal itself would
also stand dismissed.
(S.R.BRAHMBHATT,J.)
Vahid
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