Gujarat High Court Case Information System
Print
CR.MA/13587/2009 2/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 13587 of 2009
In
CRIMINAL
APPEAL No. 2419 of 2009
With
CRIMINAL
APPEAL No. 2419 of 2009
=========================================================
STATE
OF GUJARAT- ON BEHALF OFC P GOHIL, FOOD INSPECTOR - Applicant(s)
Versus
PRAKASHBHAI
RAMCHANDRA TAKHTANI (VENDOR) & 1 - Respondent(s)
=========================================================
Appearance
:
MR.
M.G. NANAVATY, ADDL.PUBLIC
PROSECUTOR for
Applicant(s) : 1,
None for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 03/03/2010
COMMON
ORAL ORDER
1). Heard
Mr. M.G. Nanavaty, learned Additional Public Prosecutor for the
applicant.
2). The
applicant State of Gujarat, through Food Inspector, Jamnagar has
preferred this appeal under Section 378(4) of the Code of Criminal
Procedure challenging the judgment and order dated 11.11.2008 passed
by the Judicial Magistrate 1st
Class, Jamnagar in Criminal Case No.468 of 2007 on the ground that
the same is required to be quashed and set aside as is passed
contrary to the provisions of law and without
appreciation of the facts and evidence on record. The appeal is
accompanied with the application for seeking leave to appeal. The
Court, therefore, permitted the learned A.P.P to make his submissions
on the appeal also and after hearing extensively on the ground of
appeal, the Court is of the view that the leave itself is required to
be refused for filing appeal, on the following grounds.
3) Facts
in brief leading to file this application for leave to appeal and
appeal deserves to be set out as under.
4). The
original complainant-Food Inspector on 10.11.2006 visited the firm of
the accused. At that time accused no.1 was present, after
introducing himself in presence of Panch and intimating him that he
had came to collect the sample of commodity in which the accused was
dealing. He purchased 400gms. pure Ghee on payment of Rs.72.
Thereafter, the glass bottles, cork, steel vessel, ladle etc. were
cleaned on the spot with the help of clean cloth and on being
satisfied, the bottles were free from any color, odour,
the 400gms. pure Ghee was divided in equal portion and poured into
three bottles and the bottles were sealed in accordance with law in
presence of the Panch. The memorandum of seal impression etc. were
prepared in accordance with law and the same was forwarded to the
competent authority. The report received indicated that the sample
was found to be adulterated with turmeric powder and, therefore, as
the adulteration is punishable under Section 16 of the Act, the
complaint was lodged after obtaining the competent authority’s
approval for appropriate punishment under Section 7(1) and 7(5). The
Court after framing point for determination came to the conclusion
that there was serious lacuna in the procedure of collecting the
sample of Ghee, which rendered the entire process contrary to the
procedure which is approved for taking sample of pure Ghee.
5).
The Court relied upon the decision of this Court rendered in case of
Laxmichand Bhailal Thakker Vs. State of Gujarat reported in 21 (2)
GLR 1528 held that as the sample of pure Ghee had not been collected
after heating it in a proper temperature and
making it homogeneous so as to represent the entire quantity of
Ghee, has rendered the process vulnerable
and, therefore, on such collection of sample, the conviction cannot
be pronounced. The Ld. A.P.P. could not cite any contrary decision
nor could he show the findings contrary to the material on record.
In fact, the Court has recorded in its finding that the food
inspector i.e. complainant in his complaint has positively made
statement with regard to non-sealing of the Ghee before taking the
sample though he did refer to steering of the Ghee, which may have
some characteristic of making the Ghee homogeneous, but when the
Court has laid down law in respect of collecting the sample and when
there are judgments to this effect, which unequivocally go to show
that a sample of pure Ghee is to be collected only after heating it
in a given temperature and steering it so as to make it homogeneous,
the finding of the Court cannot be said to be so perverse as to call
for any interference under Section 378(4) of the Code of Criminal
Procedure. A leave, therefore, in my view not required to be
granted. As the leave is refused, the application is dismissed.
6). As
the leave is refused, the appeal is not survived and is dismissed.
(S.R.BRAHMBHATT,J.)
Vahid
Top