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CR.A/2944/2008 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2944 of 2008
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 THRO' S B AGRAWAL, FOOD INSP., - Appellant(s)
Versus
ROSHANLAL
JAGRUPCHAND SHAH (OWNER) C/O BAJRANG KARIYANA & 3 - Opponent(s)
=========================================================
Appearance
:
MS.
C.M. SHAH, ADDL. PUBLIC PROSECUTOR
for
Appellant(s) : 1,
MR SHAIVANG D MEHTA for Opponent(s) : 1,
MR
DHIRENDRA MEHTA for Opponent(s) : 2 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 26/04/2010
ORAL
JUDGMENT
(1) Heard
learned advocates for the parties.
(2) The
appellant, State of Gujarat has preferred this appeal under Section
378 of the Code of Criminal Procedure challenging the order of
acquittal dated 4th
September, 2008 passed by the Learned Judicial Magistrate First
Class, Mangrol in Criminal Case No.742 of 1998 acquitting the
original 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 the PFA Act
for the sake of brevity)
(3) The
original complainant, Food Inspector while discharging his duties on
9.10.1997 visited the premises of the accused. At that time, he
found the owner of the shop sitting at the counter and doing his
business. One person was summoned as a witness to be a Panch
Witness. After introducing himself as such and after notifying his
intention to collect the sample food article namely Lotus Mango
Pickles (Pack), purchased three bottles of 200 gms. each on payment
of Rs.45 and taken the receipt thereof. The said Lotus Mango Pickles
(Pack) bottles contained label that it was Lotus Mango Pickles, in
edible oil FPO 1828
Gujarat Food Products, Fidar Road, Bilimora-396 380 etc. It did
contain the ingredients used for preparing the Pickles, which is
narrated by the Food Inspector in his complaint. The bottles,
thereafter, were sealed in accordance with law and one part of the
sample food article was sent to the Public Analyst and the remaining
two parts were sent to the Local Health Authority. The purchaser
namely Gujarat Food Products, Bilimora was also informed with regard
to collection of the sample in Form No.6. The purchase of Lotus
Mango Pickles (Pack) from the purchaser was under the bill, which was
produced as a Xerox copy. The Gujarat Food Products was requested to
give their constitution. As the food article was found to be
adulterated, requisite complaint was filed after obtaining proper
sanction for lodging prosecution against the vendor as well as
purchaser. The notice for filing complaint was sent to all the
concern. The accused appeared and requested for sending the sample
for examination to Central Food Laboratory and accordingly the sample
was sent to Central Food Laboratory, wherein it was opined to be not
in conformity with the standard laid down under the Prevention of
Food Adulteration Rules and hence declared
adulterated. The Trial began and after recording evidence and
appreciating the same, the Court came to the conclusion that the
prosecution cannot be said to have been established its case beyond
reasonable doubts and hence acquitted the accused of the charge of
committing offence punishable under Section 16 of the PFA Act
vide its order dated 4th
September,2008, which is impugned in the present proceedings under
Section 378 of the Code of Criminal Procedure.
(4) Ms.
C.M. Shah, Learned Additional Public Prosecutor contended that the
report of the CFL being conclusive and as it is containing clear
opinion with regard to food article in question being adulterated,
the Trial Court ought to have been appreciated these facts and
recorded its finding accordingly.
(5) Shri
Shaivang D. Mehta, learned advocate appearing for the respondents
contended that the finding recorded by the Trial Court are based upon
the material on record and unless it is shown to be otherwise the
Court may not interfere with the same under Section 378 of the Code
of Criminal Procedure.
(6) Shri
Shaivang D. Mehta, learned advocate appearing for the respondents
submitted that the Court has relied upon the decision of this Court
in case of State
of Gujarat Vs. Arjanbhai Somabhai Thakor & Ors. reported in
2007(2)FAC 333
in respect of noncompliance of Rule 4 of the Prevention of Food
Adulteration Rules. In asmuchas the Exh.67, report of the CFL is
eloquently clear in respect of the breach observed by the Court. The
learned Additional Public Prosecutor also could not controvert this
fact as this Court has also noticed from Exh.67 that the requisite
information does not get reflected in the report by CFL. The
following portion of the judgment of this Court in case of State
of Gujarat Vs. Arjanbhai Somabhai Thakor & Ors. reported in
2007(2)FAC 333
is required to be set out, wherein it is held as under:-
Para
10
This
Court has perused the record of the case and also heard the counsels
for the parties at length. Shri Modi’s submission that
non- compliance
of Rule 4 of the Rules deserves to be considered and accepted. From
the record of the case, it is clearly established that there is a
breach of Rule 4 of the Rules, as it is on the record that the
seals on sample container were intact.
The seals on outer cover of sample parcel were also intact and
tallied with the specimen impression of seal enclosed with copy of
memorandum forwarded separately, however, it is not clearly
mentioned by the Director of Central Food Laboratory that Court also
applied its seals on both the containers .
Para-11
This
Court has time and again observed that absence of reference to Form
I in the report of Director of Central Food Laboratory would cast
doubt about the compliance. In this case, it is conspicuously not
mentioned by the Director of Central Food Laboratory as to whether
there was a seal on the container. It is a mandatory provision
under Rule-4, and therefore, it cannot be said that it is complied
with.
This
Court in the case of State of Gujarat Vs. B.M. Mehta, reported in
1999(2) FAC 201: 1999(1) GLH 227, had a occasion to examine the
breach of Rule 4 and in that case, this Court has held that it
cannot be said that there was compliance with Rule 4 in sending
sample by the Court to the CFL. This Court in the case of State of
Gujarat Vs. Gafurbhai Bhikhabhai Mansuri and Others, reported in
2005(3) GLH 409, and in another case of State of Gujarat Vs.
Jayantibhai Maganbhai Patel in Criminal Appeal No.1037 of 1992,
decided on 29.8.2005 by this Court (Coram: S.R. Brahmbhatt,J.) has
held that Rule 4 has not been complied with when the identical
wordings were employed by the Director of CFL in the certificate.
In the case of State of Gujarat Vs. Gafurbhai Bhikhabhai Mansuri
(Supra) the wordings of the Director of CFL at Exh.43 in that case,
read as under:-
The
seals on sample container were intact and tallied with the specimen
impression of seal given on copy of Form VII enclosed. The seals
on outer cover of sample parcel were also intact and
tallied with the specimen impression of seal enclosed with copy of
memorandum forwarded separately.
It
is held that when such recording employed there, it does not amount
to compliance with Rule 4 as there is no reference with respect to
Form No.1. In the instant case also the averment of Director of
CFL in respect of seal as it is stated hereinabove, deserves to be
viewed in its proper perspective. The same may be set out as
under:
The
seals on sample container were intact. The seals on outer cover of
sample parcel were also intact and tallied with the specimen
impression of seal enclosed with copy of memorandum forwarded
separately.
(7) In
view of the aforesaid observation and bearing in mind the mentioning
by the CFL, in the instant case Exh.67 would go to show that the
certificate did not reflect due compliance with Rule 4 and,
therefore, the finding of acquittal in my view needs no interference
as no miscarriage of justice is even pleaded. In the result appeal
fails and is hereby dismissed.
(S.R.BRAHMBHATT,J.)
Vahid
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