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CR.A/2142/2004 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2142 of 2004
For
Approval and Signature:
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 - Appellant(s)
Versus
SHAMBHUBHAI
OMKARBHAI TANK - Opponent(s)
=========================================================
Appearance
:
MR.
M.G. NANAVATY, ADDL.PUBLIC
PROSECUTOR for
Appellant(s) : 1,
MR DK MODI for Opponent(s) : 1,
MR MD MODI
for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 26/03/2010
ORAL
JUDGMENT
(1) Heard
learned advocates for the parties.
(2) The
State of Gujarat, appellant herein above has preferred this appeal
under Section 378(1)(3) of the Code of Criminal Procedure, 1973
against the order of acquittal passed by the Additional Sessions
Judge (F.T. Court No.4), Gandhinagar in Criminal Appeal No.1 of 2004
dated 10.8.2004 acquitting the respondent-original accused and
reversing the order of conviction passed by the 3rd
Judicial Magistrate First Class, Gandhinagar on 30.12.2003 in
Criminal Case No.7912 of 1997 for the offence punishable under
Section 16 (1)of the Prevention of Food Adulteration Act, 1954
(hereinafter referred to as PF Act for the sake of brevity).
(3) At
the outset, it is required to be mentioned that the record and
proceedings were called for but the same has not been received.
There is a letter to the Registrar General addressed by the Principal
District Judge, Gandhinagar on 22nd February,2010
indicating that prior to 31st July,2004, the disposal
record of Gandhinagar was sent to Central Record room at Ahmedabad
(Rural) and recently they have received 400 bundles of disposal cases
from the custody of the record room, Ahmedabad (Rural) and it will
take some time in tracing out the record of this case. He submitted
that therefore the time be granted. At this stage, learned counsel
appearing for the parties namely, the appellant as well as the
respondent submitted that the order impugned in this appeal takes
note of the fact that there was glaring lacuna in case of the
prosecution, which resulted into passing of the acquittal order,
which is impugned in this proceedings and Shri Modi, learned advocate
appearing for the respondents submitted that he has in his case
papers in his possession, certified copy of the testimony of the food
inspector, wherein also the lacuna in the case of the prosecution
could be pointed out, which would help sustaining the order of
acquittal.
(4) Shri
M.G. Nanavaty, learned Additional Public Prosecutor submitted that
when the certified copy of the testimony of the food inspector is
available, then Court may not wait for entire proceedings as the
matter could be disposed of in the light of the impugned order as
well as the certified copy of the testimony of the food inspector.
(5) The
Court has heard the learned advocates for the parties on merits and
on the strength of the certified copy which is produced on record did
not take it fit to adjourn the matter for receiving the record and
proceedings as the controversy appears to be in narrow compass
(6) Prosecution
case in short deserves to be set out as under:
(7) The
original complainant food inspector in discharge of his duties as
such on 21.11.1996 at 19:30 hours visited the accused Lorry where
from the accused was selling prepared edibles known in vernacular as
Bhaji Pav. The accused had kept in one aluminum container ground nut
oil for being used for preparing the food article called Bhaji Pav.
The accused, therefore, admittedly had not kept the said ground nut
oil for selling. It was kept in the lorry for it being used for
preparing the final food article called Bhaji Pav. The food
inspector after purchasing the said oil and sealing the sample in
presence of the Pancha, sent one sample to the public analyst and
remaining two samples were sent to the Local Health Authority.
(8) The
article was found to be not in conformity with the standard and hence
it was opined to be adulterated warranting
filing of the complaint, which came to be filed after obtaining due
sanction of the competent authority. The Court of the first instance
where the criminal case no.7912 of 1997 had been tried, came to the
conclusion that the prosecution prove its case and hence convicted
the accused of the charge of committing offence punishable under
Section 16(1) and imposed six months simple imprisonment and 1,000/-
fine and in default thereof, accused was ordered to undergo one more
month of simple imprisonment vide its order dated 30.12.2003.
(9) Being
aggrieved and dissatisfied with the said order dated 30.12.2003
passed by the 3rd Judicial Magistrate First Class,
Gandhinagar in Criminal Case No.7912 of 2007, the accused preferred
appeal being Criminal Appeal No.1 of 2004 in the Court of Sessions
Judge, Gandhinagar, wherein the Sessions Court recorded its findings
with regard to erroneous judgment and order of conviction, reversed
the same and acquitted the accused respondent herein above of the
charge of committing offence punishable under Section 16(1). This
order dated 30.12.2003 is impugned in this present proceedings under
Section 378 of the Code of Criminal Procedure.
(10) Shri
D.K. Modi, learned advocate appearing for the respondent relying upon
the testimony of the food inspector contended that the food inspector
has clearly admitted in his cross examination that he did not clean
the bottles and bowl, in which the food article was collected for
examination. He has also admitted in his cross-examination that the
subject oil was collected from the container into the bowl (Tapeli)
and that bowl had not been cleaned on the spot nor was there any
evidence to show on record that either the bowl or bottles were
cleaned by any one and hence there was failure on the part of the
prosecution in leading cogent evidence to establish compliance with
Rule 14 of the Prevention of Food Adulteration Rules. Certified copy
of the testimony of the food inspector has been relied upon by Shri
Modi. In addition to the aforesaid submissions, Shri Modi further
submitted that the order of acquittal is otherwise also sustainable
in view of the fact that there is breach of rule 9(B) of the
Prevention of Food Adulteration Rules, 1955 in asmuchas mandatory
provisions of sending report of public analyst to the accused person
within 10 days from the date of institution of proceedings is not
complied with . The said aspect has been appreciated by the First
Appellate Court as could be seen from its judgment, wherein it is
clearly come out that the complaint was instituted on 25.9.1997 and
notice was sent on 10.10.1997. Shri
Modi has relied upon the following authorities:
Unreported
judgment in case of State of Gujarat Vs. Bharatsinh Balvangsinh Zala
in Criminal Appeal No.599 of 1990.
In
case of Ahmed Dadabhai Advani Vs. State of Maharashtra reported in
1948-1997, SCI, Page 939.
(11) Shri
M.G. Nanavaty, learned Additional Public Prosecutor appearing for the
appellant could not controvert the contentions raised by Shri Modi
nor could he show anything contrary to what was submitted by Shri
Modi at the bar on the strength of the certified copy of the judgment
of the Court of the first instance as well as the Appellate Court and
the testimony of the food inspector.
(12)
This Court is of the view that the appeal is required to be dismissed
on the following reasons.
(13) The
two serious flaws in the case of the prosecution could be noticed by
this Court from the certified copies of the judgment as well as
certified copy of the testimony of the food inspector namely the
prosecution could not establish by leading cogent evidence that the
food inspector while collecting the sample complied with Rule 14 of
the Prevention of Food Adulteration Rules. On the contrary, the
cross -examination of the food inspector go to show that the food
inspector did not clean the vessels in which the oil was taken from
the first instance in container, which was lying in the lorry of the
accused nor did he lead any positive evidence to show that the
bottles wherein, the oil was poured were also cleaned or he got them
cleaned in his supervision. Thus, there was no evidence with regard
to compliance with Rule 14 of the Prevention of Food Adulteration
Rules, which will go to the root of the case of the prosecution.
(14) The
second flaw is in respect of the non-compliance with provisions of
Rule 9(B) of the Provisions of Food Adulteration Rules, 1955 in
asmuch as the complaint was lodged on 25.9.1997 and the notice by LHA
was said to have been dispatched on 10.10.1997 admittedly beyond the
said period of 10 days. Before parting with this judgment, the Court
is also of the view that the factor with regard to the inherent
lacuna in the prosecution case needs to be mentioned at this stage
that the food article in question had admittedly not been kept for
selling it to the people. Though it was kept there in the lorry, but
the same was kept only for preparing the final product called Bhaji
Pav.
(15)
The Court at this stage did not elaborately dwell upon this aspect
that the order of acquittal otherwise also capable of being
sustained on the true aspect which has been set out herein above.
The Court is of the view that the order of acquittal deserves to be
sustained. The appeal fails and accordingly the appeal is dismissed.
(S.R.BRAHMBHATT,J.)
Vahid
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