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CR.A/643/2003 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 643 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
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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
PRAVINBHAI
PUNJABHAI GANDHI & 1 - Opponent(s)
=========================================================
Appearance
:
PUBLIC
PROSECUTOR for
Appellant(s) : 1,
NOTICE UNSERVED for Opponent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 18/03/2010
ORAL
JUDGMENT
(1) The
State of Gujarat, appellant hereinabove has preferred this appeal
under Section 378 (1) (3) of the Code of Criminal Procedure,1973
against the order of
acquittal dated 17.2.2003 passed by the Learned Judicial Magistrate
First Class, Ahmedabad (Rural) in Criminal Case No.280 of 1992
acquitting the respondents accused of the charge of committing
offence punishable under Section 16 of the Prevention of Food
Adulteration Act,1954 (hereinafter referred to as the PFA Act
for the sake of brevity).
(2) When
the matter was called out, Learned Additional Public Prosecutor
submitted the relevant papers namely testimony of the Food Inspector
complainant at Exh.39 and submitted that the entire case is required
to be disposed of as could be seen from the testimony itself. The
Court, therefore, proceeded with the matter and heard the Learned
Additional Public Prosecutor and decided to dispose of the matter
after perusing the certified copy of the testimony.
(3) Facts
in brief leading to filing of this appeal deserve to be set out as
under:
(4) The
original complainant Food Inspector in discharge
of his duties as such on 7.8.1991 at around 3:00 O’ clock visited the
shop of the accused, where accused no.1 was found to be present. In
presence of Panch Witness and after introducing himself as such, he
found that in a tin, containing about 10 K.G. of Oil, which was said
to be Ground Nut Oil was preserved for selling. After indicating his
intention to collect the sample food article of Ground Nut Oil from
the said tin, he purchased 500 gms. of Ground Nut Oil and took it in
the clean steel vessel and, thereafter, transferred into three
odour-less glass bottles.
After
sealing it with a wooden cork
and
affixing signature etc. thereon, 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 accused no.2 is the owner of the
shop. The public analyst opined the oil to be not in conformity with
the standard laid down in the Prevention of Food Adulteration Rules
and, therefore, adulterated. On receipt of the report of the public
analyst, the competent authority’s sanction was obtained for lodging
prosecution and the prosecution was lodged. The requisite notice was
issued, the Trial Court after recording evidence, came to the
conclusion
that the offence is not said to have been proved and hence acquitted
the accused vide its order dated 17.2.2003, which is impugned in this
appeal under Section 378 of the Code of Criminal Procedure.
(5) The
Food Inspector in his testimony has admitted that the sanctioning
authority for lodging prosecution was one Shri D.T. Brahmbhatt, who
was at the relevant time holding charge of the Local Health
Authority. Now as per the judgment of this Court, it is established
principle of law that the prosecution cannot be sanctioned by a
person holding charge of the post of incumbent, whereas in this case
the in-charge person has sanctioned prosecution. Though the Court
has proceeded on the footing for recording acquittal that there was
no clear evidence with regard to compliance with Rule 14 of the
Prevention of Food Adulteration Rules. The testimony of the Food
Inspector as could be seen from the certified copy thereof can be
said that the Trial Court was correct in coming to the conclusion
that there was no evidence with regard to compliance with Rule 14 of
the Prevention of Food Adulteration Rules. Moreover, the
Trial Court has also recorded finding with regard to non-compliance
with Section 13 (2) notice to the accused no.2.
(6) In
view of the aforesaid facts and circumstances, this Court is of the
view that the order of acquittal cannot be said to be so perverse so
as to call for any interference under Section 378 of the Code of
Criminal Procedure. Hence the appeal fails and is hereby rejected.
(S.R.BRAHMBHATT,J.)
Vahid
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