{"id":26086,"date":"2010-02-18T00:00:00","date_gmt":"2010-02-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chandubhai-vs-state-on-18-february-2010"},"modified":"2018-01-23T08:37:23","modified_gmt":"2018-01-23T03:07:23","slug":"chandubhai-vs-state-on-18-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chandubhai-vs-state-on-18-february-2010","title":{"rendered":"Chandubhai vs State on 18 February, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Chandubhai vs State on 18 February, 2010<\/div>\n
Author: J.C.Upadhyaya,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.RA\/331\/2002\t 2\/ 16\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nREVISION APPLICATION No. 331 of 2002\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE J.C.UPADHYAYA\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=========================================================\n\n \n\nCHANDUBHAI\nLALJIBHAI PATEL & 1 - Applicant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 1 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nRAJESHWAR J DAVE for\nApplicant(s) : 1 - 2. \nMR DC SEJPAL, ADDL.PUBLIC PROSECUTOR for\nRespondent(s) : 1, \nNOTICE SERVED BY DS for Respondent(s) :\n2, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE J.C.UPADHYAYA\n\t\t\n\t\n\n \n\nDate\n: 18\/02\/2010 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
Both
\n\tthe applicants who were original accused in Criminal Case No.562 of
\n\t1992 tried by learned Judicial Magistrate First Class, Kalol and
\n\toriginal appellants in Criminal Appeal No.45 of 2001, heard and
\n\tdisposed of by learned Additional Sessions Judge, Mehsana have
\n\tpreferred this revision application u\/s.397 r\/w.Section 401 of the
\n\tCr.P.C. challenging the legality and validity of the judgments
\n\trendered by both the subordinate Courts.\n<\/p>\n
The
\n\tprosecution case in nutshell is that the respondent No.2 Food
\n\tInspector (‘FI’, for short) Mr.Sumanchandra Trivedi along with other
\n\tOfficers of the raiding party visited the shop of the applicant
\n\taccused on dated 10.4.1991 and collected a sample of groundnut oil
\n\tfrom one packed and sealed groundnut oil tin by opening the seal and
\n\tpacking of the tin. The sample was forwarded to Public Analyst and
\n\tit was reported that the groundnut oil was adulterated. It was
\n\tfurther revealed that the packed and sealed tins of groundnut oil
\n\twere manufactured by applicant accused No.2 Pravinbhai Laljibhai, a
\n\tnominee of M\/s.Atlas Oil Mill, Rajkot. Bill and relevant documents
\n\tto that effect were collected from the vendor applicant   accused
\n\tNo.1 Chandubhai at the time of the raid. The FI, after obtaining due
\n\tsanction to launch criminal case against both the accused, filed a
\n\tcriminal complaint against both applicants accused in the Court of
\n\tlearned JMFC, Kalol, which was registered as Criminal Case No.562 of
\n\t1992. It further transpires that the accused applied u\/s.13(2) of
\n\tthe Prevention of Food Adulteration Act (‘PFA Act’, for short) for
\n\tre-analysis of the sample by Central Food Laboratory, Gaziabad
\n\t(‘CFL’, for short). After recording the evidence on record and after
\n\treceipt of the report of CFL, learned JMFC, Kalol by judgment and
\n\torder dated 16.7.2001 in Criminal Case No.562 of 1992 recorded
\n\tconviction of both the accused for the offence punishable u\/s.16
\n\tr\/w.Section 7 of the PFA Act and each of the accused was sentenced
\n\tto undergo R.I for three years and fine of Rs.2000\/- each and in
\n\tdefault of payment of fine, S.I for one month.\n<\/p>\n
2.1\tBoth
\n\tthe applicants original accused challenged their conviction by
\n\tpreferring Criminal Appeal No.45 of 2001 in Sessions Court, Mehsana.
\n\tLearned Additional Sessions Judge, Mehsana vide judgment and order
\n\tdated 14.8.2002 dismissed the appeal and confirmed the order of
\n\tconviction and sentence recorded by the trial Court. This has given
\n\trise to the present criminal revision application.\n<\/p>\n
I
\n\thave heard the arguments of learned advocate, Mr.Dave, for the
\n\tapplicants accused and learned A.P.P., Mr.Sejpal, for the
\n\trespondents.\n<\/p>\n
At
\n\tthe outset, learned advocate, Mr.Dave, for the applicants submitted
\n\tthat the manner and method adopted by the trial Court in trying the
\n\tcase are illegal and irregular. My attention is drawn to Section
\n\t13(2D) of the PFA Act and it is submitted that as provided under the
\n\tsaid provision, once the Magistrate forwards sample for re-analysis
\n\tto CFL, the Magistrate shall not continue with the proceedings
\n\tpending before it until the report of CFL is received. It is
\n\tsubmitted that in the instant case, the trial Court received the
\n\treport of the CFL on dated 28.11.2000 vide forwarding letter of CFL
\n\tdated 22.11.2000. It is submitted that prior to dated 28.11.2000,
\n\texcept pronouncement of judgment, each and every procedure was
\n\tundertaken by the trial Court, meaning thereby that the charge was
\n\tframed and evidence of the FI and his witnesses was recorded. It is,
\n\ttherefore, submitted that this is a material irregularity going to
\n\tthe root of the prosecution case and this has caused great prejudice
\n\tto the defence of the accused.\n<\/p>\n
4.1\tLearned
\n\tadvocate, Mr.Dave, for the applicants submitted that there is a
\n\tvital discrepancy regarding code number (serial number). About
\n\tsample analysed by the Public Analyst, it is submitted that code
\n\tnumber  6\/MSH\/KAL-1\/305 is referred so far as the sample is
\n\tconcerned, but the code number and serial number of slip referred in
\n\tCFL report is 6\/MSH\/KA\/1\/305. It is submitted that, thus, the
\n\tdiscrepancy in code number and serial number in the details of
\n\tsample analysed by Public Analyst contained in the copy of
\n\tmemorandum and the code number and serial number of the sample
\n\tanalysed by CFL is apparent.\n<\/p>\n
4.2\tLearned
\n\tadvocate, Mr.Dave, for the applicants further submitted that in the
\n\tinstant case, no record is produced to show as to how and adopting
\n\twhich procedure learned Magistrate forwarded the second set of
\n\tsample to CFL. Neither any copy of forwarding letter nor registered
\n\tAD slip nor any rojkam prepared by the Magistrate while forwarding
\n\tthe sample to CFL is produced on record. In that respect, my
\n\tattention was drawn to Rule 4 of the PFA Rules and it is submitted
\n\tthat there is a clear violation of mandatory requirements laid down
\n\tunder Rule 4.\n<\/p>\n
4.3\tLearned
\n\tadvocate, Mr.Dave, for the applicants further submitted that in the
\n\tinstant case, there is outright violation of mandatory requirements
\n\tlaid down under Rule 14 of the PFA Rules. If the evidence of FI is
\n\tconsidered, according to him, the work of lifting samples etc. was
\n\tundertaken by him whereas if the evidence of Sanitary Inspector PW-2
\n\tKantilal Trivedi is considered, according to his evidence at the
\n\tinstance of FI, he had collected the samples of groundnut oil. It
\n\tis, therefore, submitted that thus there is a major inconsistency in
\n\tthe evidence adduced by the prosecution as to actually who collected
\n\tthe sample. FI PW-1 Sumanchandra Trivedi in his evidence stated that
\n\tfrom the packed and sealed tin of groundnut oil, the groundnut oil
\n\tfor the purpose of sample was initially collected in a utensil
\n\t(tapeli) and, thereafter, the same was collected in three clean and
\n\tdried glass bottles. It is submitted that the FI nowhere stated as
\n\tto when and how the bottles were cleaned and dried and who had
\n\tcleaned and dried the bottles. There is no evidence whatsoever
\n\tregarding cleaning of the utensil (tapeli). It is submitted that if
\n\tthe evidence of PW-2 Kantilal Trivedi is accepted, that in fact, the
\n\tsamples were collected and lifted by him, then, in his entire
\n\tevidence, even orally he does not say that the sample bottles were
\n\tcleaned and dried. Therefore, it is submitted that there is a clear
\n\tnon-compliance of Rule 14 of the PFA Rules.\n<\/p>\n
4.4\tLearned
\n\tadvocate, Mr.Dave, for the applicants submitted that the conviction
\n\tcame to be recorded solely relying upon the CFL report, Exh.116, as
\n\tthe report of CFL, supersedes report of Public Analyst. If the
\n\tfurther statements of the applicants recorded u\/s.313 of the Cr.P.C.
\n\tare considered, nowhere the question was put to any of the
\n\tapplicants accused by the trial Court seeking their explanation
\n\tabout the evidence in form of CFL report. It is, therefore,
\n\tsubmitted that the trial Court used the important piece of evidence
\n\tof CFL report without affording any opportunity to any of the
\n\taccused to explain in their further statements.\n<\/p>\n
4.5\tLearned
\n\tadvocate, Mr.Dave, for the applicants submitted that if the judgment
\n\trendered by the first Appellate Court is considered, the judgment is
\n\tbased on presumptions and inferences which were not available on
\n\trecord and the first Appellate Court upheld the conviction of the
\n\tapplicants.\n<\/p>\n
4.6\tUltimately,
\n\tit is submitted that the revision application may be allowed.\n<\/p>\n
Learned
\n\tA.P.P., Mr.Sejpal, for the respondents vehemently opposed this
\n\trevision application and submitted that considering the limited
\n\tscope contained u\/s.397 r\/w.Section 401 of the Cr.P.C. and
\n\tconsidering the concurrent findings of two subordinate Courts, there
\n\tis no reason whatsoever to interfere with the findings in this
\n\trevision application.\n<\/p>\n
5.1\tIt
\n\tis submitted that about the compliance of mandatory requirements
\n\tlaid down under the PFA Act and Rules, both the subordinate Courts
\n\thave unanimously held that the mandatory requirements were duly and
\n\tfully complied with.\n<\/p>\n
5.2\tRegarding
\n\tthe contention raised on behalf of the applicants about Section
\n\t13(2)(D) of the PFA Act, it is submitted that the irregularity, if
\n\tany committed by the trial Court, does not vitiate the whole
\n\tproceedings and trial. The trial Court delivered the final judgment
\n\tin the criminal case only after the receipt of the report of CFL. It
\n\tis submitted that even considering the report of CFL, Exh.116, the
\n\tsample of groundnut oil is found to be adulterated. The entire
\n\tevidence was recorded in presence of both the accused, and,
\n\ttherefore, they were fully conversant about the report of CFL. They
\n\twere represented by advocate before the trial Court. Therefore,
\n\tnon-putting of the incriminating piece of evidence emerging from the
\n\tCFL report shall not vitiate the trial and the ultimate conclusion
\n\tarrived at by the trial Court. Ultimately, it is submitted that the
\n\trevision petition may be dismissed.\n<\/p>\n
I
\n\thave gone through the paper-book of the record and proceedings of
\n\tthe trial Court supplied by learned advocate, Mr.Dave, for the
\n\tapplicant. The set of paper-book shall be taken on record.\n<\/p>\n
Considering
\n\tthe evidence of FI PW-1 Mr.Trivedi examined at Exh.26 about the
\n\tcollection and lifting of sample, he categorically stated that it
\n\twas he who conducted the work. He selected the packed and sealed tin
\n\tof groundnut oil for the purpose of collecting the sample. It was he
\n\twho stirred the contents of the tin and according to him, initially
\n\the collected the groundnut oil for the purpose of sample in an
\n\tutensil (tapeli) and, thereafter, the same was poured in three equal
\n\tparts in cleaned and dried three glass bottles. In this respect,
\n\tconsidering the evidence of PW-2 Kantilal Trivedi, Exh.61, according
\n\tto him, at the time of raid, he had accompanied the FI
\n\tMr.Sumanchandra Trivedi. In his cross-examination, he stated that he
\n\thas to accompany the FI whenever FI visited the shops for collecting
\n\tsamples of food articles. According to him, he was told by Supply
\n\tOfficer to open packed tin of groundnut oil and to collect the
\n\tsample. According to him, thereafter he collected the sample of
\n\tgroundnut oil in three glass bottles in equal share. Under such
\n\tcircumstances, about the contention raised by learned advocate,
\n\tMr.Dave, for the applicants that out of the two Officers, who
\n\tcollected the sample, is still uncertain. This fact carries
\n\trelevance for the reason that FI PW-1 Mr.Trivedi in his evidence
\n\tregarding compliance of Rule 14 of the PFA Rules only deposed that
\n\tthe bottles were cleaned and dried, whereas if the evidence of PW-2
\n\tKantilal Trivedi is accepted, that it was he who lifted the sample
\n\tand poured the groundnut oil in equal share in three glass bottles,
\n\tthen in his evidence he nowhere stated that the bottles were cleaned
\n\tand dried.\n<\/p>\n
Reliance
\n\twas placed upon a case of C.D.Patel, Food Inspector Vs.
\n\tPopatlaljivaji Thakor reported
\n\tin 2005(1) FAC 46.\n<\/p>\n
\tIn a case arising under the PFA Act, this Court observed that there
\n\twas no evidence to come to the conclusion that the sample bottles
\n\twere cleaned at the time when the sample was collected therein. It
\n\twas held that thus, there was a breach of mandatory requirement laid
\n\tdown under Rule 14 of the PFA Rules
\n\tand the acquittal order rendered by the trial Court came to be
\n\tconfirmed. About Rule 14 of the PFA Rules, similar observation was
\n\tmade in the case of State of Gujarat thro’ SS Patel, Food
\n\tInspector Vs.Shyamal Tolaram Kourani decided
\n\ton 19.5.2009 in Criminal Misc.Application No.16203 of 2008
\n\tin Criminal Appeal No.3036 of 2008 by
\n\tthis Court. In the case of Sudhirchandra B.Joshi, Food
\n\tInspector, Baroda Vs.Arvindkumar Naranbhai Patel and Ors.
\n\treported in 1995(2) GLH (U.J.24) 24,
\n\tthis Court about compliance of Rule 14 of the PFA Rules held that a
\n\tduty is cast on prosecution not only to comply with mandatory
\n\tprovision, but to lead evidence at the trial for its compliance.\n<\/p>\n
In
\n\tlight of the principles established by this Court in the above
\n\tjudgments and considering the facts and circumstances of the present
\n\tcase, it can safely be said that the FI PW-1 Sumanchandra Trivedi
\n\tnowhere states as to when and how the sample bottles were cleaned.
\n\tHe nowhere states as to who cleaned the same. As state above, the
\n\tprosecution has not only to prove that the samples so collected in
\n\tcleaned and dried bottles, but should adduce evidence to that
\n\teffect. Under such circumstances, I am of the considered opinion
\n\tthat in the instant case, the mandatory requirements laid down under
\n\tRule 14 of the PFA Rules, cannot be said to have been duly and fully
\n\tcomplied with.\n<\/p>\n
There
\n\tis no dispute that in the instant case, the accused opted for
\n\tsending the sample of groundnut oil for re-analysis to CFL. It
\n\tappears that the accused before the trial Court applied for the
\n\tsame. About the procedure by which the Magistrate forwarded the
\n\tsample to CFL is concerned and considering Sub-Rule 3 of Rule 4 of
\n\tthe PFA Rules, it is clearly provided that a copy of memorandum and
\n\tspecimen impression and the seal used to seal the container and the
\n\tcover shall be sent separately by registered post to the Director.\n<\/p>\n
10.1\tIn
\n\tthe instant case, nothing emerges from the evidence on record as to
\n\thow and in which manner the trial Court forwarded the sample for
\n\tre-analysis to the Director of CFL. Learned advocate, Mr.Dave, for
\n\tthe applicants submitted that no office copy of the memorandum is
\n\tproduced on record nor any AD slip showing that the memorandum and
\n\tspecimen impression of the seal were sent to the Director by
\n\tregistered post. It is further submitted that nothing emerges that
\n\tat the time when the trial Court forwarded the sample to the
\n\tDirector of CFL, a writing, in form of rojkam was prepared by the
\n\ttrial Court. In the case of Shriram Harichand Gujaral Vs.State of
\n\tGujarat reported in 1976(17)
\n\tGLR 434, this Court has held
\n\tthat the provisions of Rule 4(3) of the PFA Rules are mandatory in
\n\tnature. This Court in the aforesaid judgment observed that
\n\t therefore, the requirement of sending
\n\tseparately the specimen impression of the seal serves a very
\n\tlaudable purpose of safeguarding and protecting the interests of the
\n\taccused and ensures fair administration of justice to him. It is
\n\tthis special safeguard which the accused loses when the specimen
\n\timpression of the seal is sent to the Director as an enclosure in
\n\tthe packet sent to him for analysis . It is further observed that
\n\t it assumes greater significance in cases under the Prevention of
\n\tFood Adulteration Act where the fate of the accused depends upon the
\n\tcertificate issued by the Director the contents of which are final
\n\tand conclusive evidence of the facts stated therein .\n<\/p>\n
10.2\tSimilar
\n\tobservation was made by this Court in the case of State of
\n\tGujarat Vs.Ramanbhai Durlabhbhai Patel & Anr.
\n\treported in 1997(2) GLH 457.\n<\/p>\n
\tIt was held that the provisions contained under Rule 4(3) are
\n\tmandatory in nature and strict compliance is necessary. In the said
\n\tcase, there was no evidence to show that copy of the memorandum and
\n\tspecimen impression of the seal were sent separately to the Director
\n\tof CFL under the acknowledgment slip duly signed by the addressee
\n\ti.e. Director to the CFL for reanalysis. It was further observed
\n\tthat for the due compliance of mandatory requirements laid down
\n\tunder Rule 4(3) of the PFA Rules, no presumption can be raised under
\n\tSection 114 of the Evidence Act. Ultimately, in paragraph 13 of
\n\tsaid judgment, it is
\n\tobserved that  the lack of little extra carefulness on the part of
\n\tsuch official of the Trial Court has proved a costly lapse for the
\n\tprosecution .\n<\/p>\n
Thus,
\n\tin light of the above discussion, the mandatory requirements laid
\n\tdown under Rule 4(3) of the PFA Rules cannot be said to have been
\n\tduly and fully complied with.\n<\/p>\n
Learned
\n\tadvocate, Mr.Dave, for the applicants submitted that in the instant
\n\tcase, if the memorandum of the description of sample as emerged from
\n\tthe details of sample, Exh.42 is considered, the code number and
\n\tserial number and slip of Local Health Authority is 6\/MSA\/KAL-1\/305
\n\twhereas if the CFL report, Exh.116 is taken into consideration, the
\n\tcode number and serial number of LHA slip is referred to
\n\t6\/MHA\/KA\/1\/305. It is submitted that this discrepancy in code number
\n\tand serial number would nullify the effect of the report of
\n\tDirector, CFL. Reliance was placed upon the case of V.C.Dodiya
\n\tVs.S.M.Thakkar reported in
\n\t1994(1) GLR 487.\n<\/p>\n
\tPerusing to the facts of said case and considering the discussion
\n\tmade in paragraph 5 in said judgment, it transpires that there was
\n\tno discrepancy regarding code number and serial number in forwarding
\n\tletter, Exh.61 and report, Exh.67. However, FI in his oral
\n\tdeposition mentioned the serial number D-17\/5(IU)(1) whereas the
\n\tcode number as emerged from forwarding
\n\tletter and the report was D-17\/5(IV)(1). Thus, the discrepancy was
\n\tthat in forwarding letter and report, in place of  V  the FI in
\n\this oral deposition referred  U . This Court held that there was
\n\tpatent inconsistency in referring the code number and serial number
\n\tin the evidence of FI. What was referred to  serial number  of
\n\tthe sample by FI in his evidence before Court is not the one and the
\n\tsame which was forwarded to Public Analyst and which ultimately came
\n\tto be analysed. It was further observed that  it is indeed quite
\n\tdifficult for this Court also to express any opinion at this
\n\tjuncture as to whether it was some honest, bonafide mistake on the
\n\tpart of the FI while describing the serial number of the sample
\n\tbefore the Court as the one and the one which was referred to in the
\n\tforwarding letter, Exh.61  and, ultimately, came to be analysed and
\n\tso reported in Exh.67 or whether it was a mistake on the part of the
\n\tlearned Magistrate while recording the deposition of the FI that
\n\tsomehow he failed to correctly write the serial number of the
\n\tsample .\n<\/p>\n
In
\n\tthe instant case, if the judgment and order rendered by the learned
\n\tAdditional Sessions Judge is considered, about the discrepancy, the
\n\tlearned Addl.Sessions Judge observed that there may be bonafide
\n\tmistake on the part of the typist regarding such discrepancy in
\n\tserial number and code number. As observed by this Court
\n\tin V.C.Dodiya’s case referred above, this Court criticized such
\n\tapproach of raising inference and presumption that there may be
\n\thonest or bonafide mistake. The fact remains that in the instant
\n\tcase, there is a discrepancy in code number and serial number
\n\tregarding the sample.\n<\/p>\n
It
\n\tis pertinent to note that in the instant case, after forwarding the
\n\tsample at the request of the accused to CFL, as provided
\n\tu\/s.13(2)(D), the
\n\ttrial Court did not wait for report of the CFL to come. The
\n\tprovisions contained u\/s.13(2)(D) suggests that till the receipt of
\n\tthe certificate and the result of the analysis from the Director of
\n\tthe CFL, the Court shall not continue with the proceedings pending
\n\tbefore it in relation to the prosecution. There is no dispute that
\n\tthe trial Court received the report of CFL, Exh.116 on dated
\n\t28.11.2000, prior to which the charge was framed and the witnesses
\n\texamined by the prosecution was recorded. Despite such admitted
\n\tfacts, the learned Additional Sessions Judge in the impugned
\n\tjudgment and order observed that the report of CFL was received by
\n\tthe trial Court in the year 1992. Such faulty observation on the
\n\tpart of the first Appellate Court is contrary to record and amounts
\n\tto misreading of evidence. However, whether the evidence recorded by
\n\tthe trial Court without waiting for the report of the CFL can be
\n\ttreated as irregularity going to the root of the matter
\n\tand amounting to vitiating the trial may not be required to be
\n\telaborately dealt with for the simple reason that, as stated above,
\n\tin the instant case, there was clear non-compliance of the mandatory
\n\trequirements laid down under Rule 14 and Rule 4(3) of the PFA Rules.
\n\tOver and above this, the discrepancy in code number and serial
\n\tnumber creates reasonable doubt, which shall ultimately go to the
\n\taccused.\n<\/p>\n
Last
\n\tbut not the least, it is pertinent to note that the trial Court
\n\trecorded the further statement of the applicant   accused after
\n\tthe trial Court received the analysis report of CFL. Exh.116.
\n\tConsidering the judgment of the trial Court and even of the
\n\tAppellate Court, needless to say that the conviction came to be
\n\trecorded on the basis of report of analysis of the sample by CFL. To
\n\tput it differently, that was an important evidence, which was going
\n\tagainst the accused. Despite this, if the further statements of the
\n\taccused recorded by the trial Court u\/s.313 of the Cr.P.C. are
\n\tconsidered, not a single question was put to any of the accused
\n\tseeking their explanation about the evidence in form of report of
\n\tCFL. Learned advocate, Mr.Dave, for the applicants drew my attention
\n\tto the case of Shankarlal
\n\tMangilal Jain Vs. State of Gujarat
\n\tdecided by this Court on 15.9.2000 in
\n\tCriminal Revision Application No.110 of 1994. In
\n\tthe said case, petitioner Shri Jain came to be convicted by the
\n\ttrial Court for the offences punishable
\n\tunder Section 16 r\/w.7 of the PFA Act. His appeal came to be
\n\tdismissed by learned Sessions Judge, Ahmedabad. Ultimately, he
\n\tpreferred Criminal Revision Application u\/s.397 r\/w.Section 401 of
\n\tthe Cr.P.C. In the said judgment, this Court observed that the
\n\tfurther statements of the petitioner accused was not properly
\n\trecorded by the trial Court in accordance with law. In this respect,
\n\tin the said judgment, it is observed as under:-\n<\/p>\n
 It
\n\tis equally true that the accused was not called upon to explain the
\n\tnature of adulteration found in the sample of oil collected from
\n\thim.  The only question put to him was – “What he had  to say
\n\tabout the  report of the Director of Central Food Laboratory ?  To
\n\twhich he had answered that, `the report is false”. The accused
\n\twas not explained the contents of the report of the Director of
\n\tCentral Food Laboratory, and that it was found to be adulterated  by
\n\t addition  of cotton  seed oil, and no explanation was sought from
\n\tthe accused as regards the nature of adulteration. This, in  my
\n\tview,  can  not be said to be an adequate opportunity given to  the
\n\taccused to defend his action. This opportunity  of defence, as
\n\tenvisaged under section 313 CRPC, is an important and vital to right
\n\tof defence. The infringement of
\n\tsuch right shall result into acquittal.\n<\/p>\n
\tIf
\nthe facts and circumstances emerging from the \tinstant case are
\nconsidered, it clearly\ttranspires that the instant case rests even
\non\tbetter footing than Shankarlal Jain’s case, in\tthe sense that in
\nthe instant case, the learned\ttrial Judge did not ask even a general
\nquestion\tto any of the applicant   accused as to what\tthey
\nhave to say about report of Director of\tCFL. In Shankarlal Jain’s
\ncase, this Court held\tthat even to put such general question to
\nthe\taccused about what he has to say, regarding the\treport of CFL
\ncannot be said to be due\tcompliance of provisions contained in
\nCr.P.C.,\twhereas in the instant case, the trial Court did \tnot put
\neven such general question to any of the \taccused. Under such
\ncircumstances, I am of the\topinion that the principle established by
\nthis\tCourt  in Shankarlal Jain’s case squarely\tapplies\tto the facts
\nand circumstances of our\tcase.\n<\/p>\n
\tIn
\n\tthe result, I am of the opinion that the revision application
\n\tdeserves to be allowed.\n<\/p>\n
For
\n\tthe foregoing reasons, the revision application is allowed. The
\n\tjudgment and order rendered by learned Additional Sessions Judge,
\n\tMehsana on dated 14.8.2002 in Criminal Appeal No.45 of 2001 whereby
\n\tthe judgment and order rendered by learned Judicial Magistrate First
\n\tClass, Kalol on dated 16.7.2001 in Criminal Case No.562 of 1992
\n\twherein both the applicants accused came to be convicted for the
\n\toffences punishable under Section 16 r\/w.7 of the PFA Act and the
\n\tsentence awarded to them thereunder and which came to be upheld by
\n\tthe learned Additional Sessions Judge, Mehsana in the aforesaid
\n\tappeal, are hereby quashed and set-aside. Both the applicants
\n\taccused are ordered to be
\n\tacquitted from all the charges levelled against them. Fine, if paid,
\n\tbe refunded to them.\n<\/p>\n
(J.C.UPADHYAYA,
\nJ.)<\/p>\n
(binoy)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Chandubhai vs State on 18 February, 2010 Author: J.C.Upadhyaya,&Nbsp; Gujarat High Court Case Information System Print CR.RA\/331\/2002 2\/ 16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 331 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 1 Whether Reporters of Local Papers may be allowed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-26086","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nChandubhai vs State on 18 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chandubhai-vs-state-on-18-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chandubhai vs State on 18 February, 2010 - 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