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CR.A/896/1996 3/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 896 of 1996
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
SHANTILAL
NATHALAL THAKKAR & 3 - Opponent(s)
=========================================================
Appearance
:
MR.
MAULIK NANAVATY, ADDL.PUBLIC
PROSECUTOR for
Appellant(s) : 1,
NOTICE SERVED for Opponent(s) : 1,
MR DK MODI
for Opponent(s) : 2 - 4.
MR MD MODI for Opponent(s) : 2 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 11/03/2010
ORAL
JUDGMENT
(1) Heard
learned advocate for the parties.
(2) The
appellant-State of Gujarat has preferred this appeal under Section
378 of the Code of Criminal Procedure challenging acquittal order
dated 29.6.1996 passed by the Chief Judicial Magistrate, Ahmedabad
(Rural), Mirzapur. in Criminal Case No.1307 of 2005 acquitting the
accused of the charge of committing offense under Section 16(1-A)sub
section (I) (II) of the Prevention of Food Adulteration Act.
(3) It
was a case of the prosecution before the Court that the concerned
food inspector in discharge of his duties visited the place of the
accused no.1 vendor on 2nd December, 1994 at about 11:30
hours, where he found that the owner of the shop was present. After
introducing himself as food inspector and after notifying his
intention to collect the sample of food article i.e. Full Cream Milk,
he purchased two pouches of Royal Dairy Milk, Pasteurized Full Cream
Milk and after pouring the same in three equal portion, completed
formalities of sealing, signing etc. and sent for examination to
public analyst on 2nd December, 1994 itself and remaining
two samples were sent to the local heath authority as per the law.
The public analyst in its report dated 22.12.1994 opined that the
sample was not inconformity with the standard laid down under the law
and, therefore, it was treated as adulterated and, therefore, the
complaint was lodged after obtaining due sanction from the
competent authority. The Court after recording evidence and
appreciating the same, come to the conclusion that the prosecution
could not bring on the charge against the accused acquitted the
accused of the charge of committing offense under Section 16 of the
Prevention of Food Adulteration Act. This appeal is preferred
assailing the said order of acquittal under Section 378 of the Code
of Criminal Procedure.
(4) Shri
Nanavaty, learned Additional Public Prosecutor submitted that the
order of acquittal is not sustainable as the same is containing
findings which are not in accordance with law. He however, could not
controvert the fact that there were serious lacuna pointed out in the
case of the prosecution in respect of the very identification of the
sample, which deal a blow to the
lodging of the proseuciotn itself.
(5). Shri
Modi learned counsel appearing for the respondent submitted that the
Trial Court has recorded acquittal on account of noncompliance of
mandatory provisions of rule 14 of the Prevention of Food
Adulteration Act. The Panchnama shows that the public analyst ins
his report Exh.34 as under the heading, details of the sample has
narrated it to be S.M. lead correct is M.S. Lead. This being a
serious discrepancy going to the route of lodging of any
prosecution, the acquittal order did not be disturbed under Section
378 of the Code of Criminal Procedure.
(6) The
Court has heard the parties and perused the record and proceedings.
The Trial Court has in fact recorded on three ground namely much
difference between the findings of the public analyst as well as that
of CFL and the discrepancy in respect of lead of the container, which
contains the sample and noncompliance with rule 14. This Court is of
the view that the acquittal deserves to be sustained at least on two
grounds as the first ground with regard to difference in findings of
the authorities namely public analyst as well as that of CFL would be
not of much help to the defense as once the CFL findings are being
brought on record, the public analyst report would pale into
insignificance, would be of no avail for whatsoever reason. However,
it is required to be noted that the findings with regard to
noncompliance of mandatory provisions of rule 14 is required to be
appreciated in view of the fact that the complainant has deposed that
the vessels for collecting sample were cleaned by the helper on the
spot, but helper in his examination in chief has not stated the same
and this being only an evidence with regard to compliance with Rule
14 of the Prevention of Food Adulteration Rules. The Court was
justified in coming to the conclusion that the prosecution could not
established positively compliance with Rule 14 of the Prevention of
Food Adulteration Rules. Now this bring the Court to consider the
third aspect on which the acquittal is recorded namely serious
discrepancy in the Panchnama which is describes the container lead
and the public analyst report which describes it to be S.M. Lead
(M.S.Lead). This discrepancy in the public analyst report goes to
the route of the matter as the public analyst report is the basis on
which the local health authority is required to be accord his
sanction for lodging prosecution. When this discrepancy has not has
not been noticed or explained by the local health authority in any
way, it would amount to non application of mind for according the
sanction and on that basis, it can be said that the entire
prosecution was misconceived and founded on a basis of the sanction,
which let proper application
of mind on the part of the sanctioning authority. The Court,
therefore, is of the view that the appeal against the order of
acquittal is required to be rejected and the order of acquittal is
required to be confirmed at least on two grounds namely lack of
application of mind while giving sanction and noncompliance of
Prevention of Food Adulteration Rule. Accordingly, the appeal is
rejected.
(S.R.BRAHMBHATT,J.)
Vahid
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