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CR.A/996/2004 3/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 996 of 2004
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
KANUBHAI
KESHAVLAL PATEL & 2 - Opponent(s)
=========================================
Appearance
:
MS CM SHAH, ADDL.PUBLIC
PROSECUTOR for Appellant(s) : 1,
MR DK MODI for Opponent(s) : 1 -
3.
MR MD MODI for Opponent(s) : 1 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 12/03/2010
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 16.1.2004 passed by the 2nd Civil Judge
(SD) & JMFC, Nadiad in Criminal Case No.13 of 2003 wherein the
accused hereinabove was acquitted on the charge of committing the
offence punishable under Section 2(1-a)(a) and Section 7(i) and
Section 16(1A)(1) of the Prevention of Adulteration Act, 1954. It was
the case of the prosecution before the Court that the original
complainant Food Inspector in discharge of his duties as such, on
22.4.2003 at about 9:30 hrs. visited the premises of the accused No.1
along with his helper. The owner was present in the shop. The panch
witnesses were summoned. The Food Inspector collected the pouches of
pasteurized whole milk of Ankita Brand. Two pouches were collected
on payment of Rs.8.50 ps. The pouches contained label of Ankita
pasteurized whole milk of 500 ml. maximum price Rs.8.50 ps. inclusive
of all taxes and marked as Ankita Dugdhalaya, Vijapur, packed by
Ratna Dairy, Vijapur. Food Inspector purchased 750 ml. pasteurized
whole milk for examination by the Public Analyst after adding
preservative formalin, divided it into 3 parts and thereafter added
formalin preservative and sealed the bottles as per the law. One of
the samples was sent to Public Analyst, who concluded to be not in
conformity with the standards laid down by law and the prosecution
was lead. Necessary sanction was obtained from the competent
authority. The Court has come to the conclusion that there was
non-compliance of Rule 14 of the Prevention of Food Adulteration
Rules,1954 with regard to vessels which were used for collecting the
sample. There was also no evidence with regard to notice under
Section 13(2) being served upon the accused. The Court also held that
the methodology employed for examining the sample by Public Analyst
being Gurber was not certified proper test and formalin preservative
which was added was not added before the sample was divided into
three parts. The brand contained name of Ankita Dugdhalaya who had
not been joined as party and ultimately on theses grounds the
acquittal came to be ordered which is impugned in this appeal.
3. Shri
Nanavaty, learned Additional Public Prosecutor submitted that the
Court has pressed into service many grounds for acquitting the
accused but many of them are not sustainable. However, Shri Nanavaty
could not controvert indicating anything contrary to the record so
far as reasoning with regard to evidence in respect of non-compliance
of Rule 14 of the Prevention of Food Adulteration Rules, 1955 is
concerned as well as with regard to notice under Section 13(2) and
Gurber Test.
4. Shri
Modi relied upon the decision of this Court in the case of
Corporation of the City of Nagpur vs. Neetam Manikrao Kature and
others reported in 1998 Supreme Court Cases(Cri.) 564; in the
decision of this Court (Coram: S. R. Brahmbhatt, J. ) in the case of
G.K. Upadhayay vs. Kanubhai Raimalbhai Rabari decided on 14.2.2007 in
Criminal Miscellaneous Application No. 3572 of 2006 and in the
decision of this Court (Coram: R.S. Garg, J.) in the case of K. G.
Patel, Food Inspector vs. Navinchandra Bhagvandas Lapsiwala and
others decided on 11.4.2007 in Criminal Miscellaneous Application
No.10843 of 2006; in respect of Gurber test and its vulnerability
and on that count justified the order of the trial Court.
Shri
Modi relied upon the decision of this Court (Coram: D.N.Patel, J.) in
the case of State of Gujarat vs. Kaushikbhai Ambalal Patel decided on
20.12.2004 in Criminal Appeal No.489 of 2002 and in the case of State
of U.P. vs. Badri reported in 1998(2) Prevention of Food Adulteration
Cases 18 and submitted that the preposition of law with regard to
addition of formalin preservative in milk sample is also rightly
appreciated as in the cases cited hereinabove. The Court has come to
the conclusion that the formalin preservative is to be added in the
milk before it is to be divided into three parts whereas, in the
instant case, the milk was first divided in three parts and,
thereafter formalin preservative is added. This evidence is on
record.
5. This
Court has heard the learned advocates for the parties and perused the
findings of the court below.
6. This
Court is of the view that the acquittal appeal is required to be
rejected for the following reasons:-
1) Court
has rightly held that Rule 14 of the Prevent of Food Adulteration
Rules, 1955 had not been complied with as there was no positive
evidence placed on record with regard to employment of the vessels
and its cleaning which is mandatory requirement of Rule 14 of the
Prevention of Food Adulteration Rules, 1955. So far as service of
notice upon the accused is concerned, the Court has clearly recorded
that the notice cannot be said to have been served with proper
evidence as of postal acknowledgment containing signature of one Shri
Jayantibhai who is in no way linked with the accused.
7. This
brings the Court to the third submission with regard to test adopted
by the Public Analyst for examining the milk sample i.e Gurber test.
The evidence has come on record that the test employed was not
foolproof, satisfactory or approved test, which clearly cannot be
said to be in any way perverse. The
order impugned, therefore, is required to be sustained. Appeal is
required to be dismissed and the same is dismissed. Bail bonds, if
any, stand cancelled
(S.
R. Brahmbhatt, J. )
sudhir
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