State vs Bharatkumar on 9 March, 2010

Gujarat High Court
State vs Bharatkumar on 9 March, 2010
Author: S.R.Brahmbhatt,&Nbsp;
   Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
		   Print
				          

  


	 
	 
	 
	 
	 
	 
	 
	 
	 
	


 


	 

CR.MA/1213/2010	 3/ 4	ORDER 
 
 

	

 


IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 


 


 


CRIMINAL
MISC.APPLICATION No. 1213 of 2010
 


In


 


CRIMINAL
APPEAL No. 224 of 2010
 


With


 


CRIMINAL
APPEAL No. 224 of 2010
 


 
 
=========================================
 


STATE
OF GUJARAT & 1 - Applicant(s)
 


Versus
 


BHARATKUMAR
MANILAL TANNA-M/S TANNA PROVISION STORES - Respondent(s)
 

========================================= 
Appearance
: 
MR MG NANAVATY, ADDL.PUBLIC
PROSECUTOR for Applicant(s) : 1 - 2. 
None for Respondent(s) :
1, 
=========================================
 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE S.R.BRAHMBHATT
		
	

 

 
 


 

Date
: 09/03/2010 

 

 
 
ORAL
ORDER

1. Heard
Shri M.G. Nanavaty, learned Additional Public Prosecutor for the
State.

2. The
State of Gujarat has preferred this application under Section 378(4)
of the Code of Criminal Procedure,1973 and the Appeal for challenging
the order of acquittal dated 8.10.2009 passed by the Chief Judicial
Magistrate, Rajkot in Criminal Case No. 8761 of 2000 acquitting the
respondent of the charge of committing the offence punishable under
Section 2(i-a)(a), Section 2(ix)(a), Sections 7(i)(ii) and 16 of the
Prevention of Food Adulteration Act, 1954 ( hereinafter referred to
as the Act for sake of brevity).

3.
The facts leading to filing of this appeal and application to leave
to appeal deserve to be set out as under :-

(1) The
complainant Food Inspector in discharge of his duties on 30th
August, 2000 at 17:00 hrs. visited the Provision Store of the
accused. The shop owner was present in the shop who happened to be
the accused. After introducing himself as the Food Inspector, on
examining the article lying in the shop, he found that in one open
tin 12 kg of Cotton Seed Oil was kept for sale. On enquiring also it
was informed that it was Cotton Seed Oil for sale. The Food Inspector
completed the formalities and collected the 450 grams of Cotton Seed
Oil on payment of Rs.14.40ps and poured it into three cleaned bottles
and sealed them. One of the samples was sent for examination to
Public Analyst and as it was found to be not in conformity with the
standard, the complaint was lodged after obtaining due sanction for
the same. The Court, after recording evidence, came to the conclusion
that the prosecution failed in establishing its case against the
accused and acquitted the accused of the charge of committing offence
punishable under Section 2(i-a)(a), Section 2(ix)(a), Sections
7(i)(ii) and 16 of the Prevention of Food Adulteration Act, 1954 vide
order dated 8.10.2009 which is impugned in this appeal filed under
Section 378(4) of the Code of Criminal Procedure.

4. Shri
M.G. Nanavaty, learned Additional Public Prosecutor has placed on
record the certified copies of almost all the relevant papers forming
part of the trial Court and, therefore, this Court heard him at
length in the matter and did not call for record and proceedings.

5.
Looking to the complaint, the testimony of the Food Inspector and the
reasoning given by the trial Court for recording acquittal, this
Court is of the view that leave for filing appeal itself is required
to be rejected for the following reasons :-

(1) The
trial Court recorded the glaring lacuna in the case of the
prosecution. The trial Court has recorded that the prosecution has
failed in establishing the compliance with mandatory provisions of
Section 13(2) in respect of issuance of notice to the accused with
regard to lodging of the complaint. The trial Court has recorded that
the notice under Section 13(2) is sent by Registered Post A.D. and
that acknowledgment which was produced did not bear any postal stamp
or any name of the post office or any seal of the post office. These
facts have been admitted by the complainant in his cross-examination
but he did say that he recognized the signature of the
accused-respondent and, therefore, on the strength of such statement,
the prosecution’s attempt to prove due service was not accepted by
the Court. The Court has further observed in respect of Section 13(2)
notice that in the notice, it is mentioned that the complaint is
lodged in the Traffic Court. Now, this being glaring lacuna, cannot
be countenanced by saying that the summons would have been issued by
the Court. Notice is required to contain the specific case number.
However, the Court in which it is filed the words ‘Traffic Court’ is
mentioned. This cannot be said to be a notice in the eyes of law in
compliance with Section 13(2) of the Prevention of Food Adulteration
Act, 1954.

6. The
trial Court has also observed lack of cogent evidence with regard to
compliance of Rule 14 of the Prevention of Food Adulteration
Rules,1955 with regard to employing of clean, odorless, dry vessels
for collecting samples. The trial Court’s findings have not been
indicated to be not based on any record and material.

7. This
Court is of the view that leave to appeal itself is not required to
be granted. Leave is, therefore, refused to file appeal and as such
the leave is refused. As the leave to appeal is refused, Appeal
itself is also not required to be entertained and the same is,
therefore, dismissed. No order as to costs.

(S. R.

Brahmbhatt, J. )

sudhir

   

Top

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *