{"id":4917,"date":"2010-02-17T00:00:00","date_gmt":"2010-02-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sanjay-vs-state-on-17-february-2010"},"modified":"2015-05-03T19:24:38","modified_gmt":"2015-05-03T13:54:38","slug":"sanjay-vs-state-on-17-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sanjay-vs-state-on-17-february-2010","title":{"rendered":"Sanjay vs State on 17 February, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Sanjay vs State on 17 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\/240\/2000\t 8\/ 11\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. 240 of 2000\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\nSANJAY\nRATILAL SHAH - Applicant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nYM THAKKAR for\nApplicant(s) : 1, \nMR DC SEJPAL, ADDL.PUBLIC PROSECUTOR for\nRespondent(s) :\n1, \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: 17\/02\/2010 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
Feeling
\n\taggrieved and dissatisfied with the impugned judgment and order
\n\trendered by learned Additional Sessions Judge, Panchmahals at Godhra
\n\ton 13.6.2000 in Criminal Appeal No.22 of 1995 whereby the learned
\n\tAdditional Sessions Judge while dismissing the appeal upheld the
\n\tjudgment and order of conviction rendered by learned Judicial
\n\tMagistrate First Class, Lunavada on 7.6.1995 in Criminal Case No.254
\n\tof 1987 whereby the applicant who was original accused in said
\n\tcriminal case came to be convicted for the offence punishable under
\n\tSection 16 r\/w.Section 7 of the Prevention of Food Adulteration Act
\n\t(‘PFA Act’, for short) and was sentenced to undergo R.I for two
\n\tyears and fine of Rs.3000\/- and in default of payment of fine, R.I
\n\tfor six months, the applicant   original accused has challenged
\n\tthe legality and validity of his conviction by preferring this
\n\trevision application under Section 397 r\/w.Section 401 of the
\n\tCr.P.C.\n<\/p>\n
The
\n\tprosecution case in nutshell is that Food Inspector (‘FI’, for
\n\tshort) Mr.K.A.Patel visited the shop of the applicant   accused on
\n\tdated 22.1.1987 situated at Shahera town. The FI collected sample of
\n\tturmeric powder, and when the sample was analysed by the Chemical
\n\tAnalyser, it was revealed that the sample was not in confirmity with
\n\tthe standards laid down under the Prevention of Food Adulteration
\n\tRules (‘PFA Rules’, for short). It was also revealed that the
\n\tapplicant   original accused No.1 was found present in the shop
\n\twhen the sample was collected by the FI and the owner of the shop
\n\twas original accused No.2 Ratilal Chandulal Shah. That the sanction
\n\twas accorded by the competent authority to launch criminal
\n\tprosecution against both the accused, namely, the applicant
\n\toriginal accused No.1 and co-accused No.2 Ratilal Chandulal Shah.
\n\tAccordingly, complaint was filed against both the accused in the
\n\tCourt of learned JMFC, Lunavada by the FI, which was registered as
\n\tCriminal Case No.254 of 1987. Initially, the trial Court framed
\n\tcharge at Exh.90, to which the accused did not plead guilty.
\n\tThereafter, vide order below application, Exh.111, the charge came
\n\tto be amended on 31.5.1995 and the accused did not plead guilty to
\n\tthe amended charge as well. Considering the evidence on record and
\n\tthe submissions made on behalf of both the sides, the trial Court
\n\trecorded conviction of the applicant   original accused No.1 for
\n\tthe offence punishable u\/s.16 r\/w.Section 7 of the PFA Act and
\n\trecorded acquittal of original accused No.2 Ratilal Chandulal Shah,
\n\towner of the shop. The original accused No.1 who came to be
\n\tconvicted by the trial Court challenged his conviction by preferring
\n\tCriminal Appeal No.22 of 1995 in Sessions Court, Panchmahals at
\n\tGodhra and the learned Additional Sessions Judge vide judgment and
\n\torder dated 13.6.2000 dismissed the appeal and confirmed the
\n\tconviction and sentence recorded by the trial Court.\n<\/p>\n
I
\n\thave heard the learned advocate, Mr.Y.M.Thakkar, for the applicant
\n\toriginal accused No.1 and learned A.P.P., Mr.Sejpal, for the
\n\trespondent State.\n<\/p>\n
Learned
\n\tadvocate, Mr.Thakkar, for the applicant submitted that as per the
\n\tprosecution case, at the time when the sample of turmeric powder was
\n\tcollected, at that time, applicant   original accused No.1 Sanjay
\n\twas present and in his presence the sample was collected by the FI.
\n\tThe original accused No.2 Ratilal Chandhlal Shah was arraigned as
\n\tco-accused on the ground that he was owner of the shop. It is
\n\tsubmitted that if the charge, Exh.90 is considered, it is stated in
\n\tthe charge that at the time when the sample was collected by the FI
\n\tfrom the shop, at that time, original accused No.2 Ratilal Chandulal
\n\tShah was present, and in his presence, sample was lifted. It is
\n\tsubmitted that thereafter the trial Court recorded evidence adduced
\n\tby the prosecution. After the prosecution concluded its evidence,
\n\tthe trial Court recorded further statements of both the accused
\n\tu\/s.313 of the Cr.P.C. and when the criminal case was posted for
\n\tpronouncement of judgment, at that time on behalf of the
\n\tcomplainant, an application, Exh.111 was presented before the trial
\n\tCourt for alteration of charge to the effect that the charge should
\n\tbe read that at the time when the sample was lifted, accused No.1
\n\tSanjay was present. The said application came to be allowed on dated
\n\t31.5.1995. It is submitted that thus, the material alteration was
\n\tmade in the charge by the trial Court wherein the alleged main
\n\taccused was treated as abettor and the alleged abettor was treated
\n\tas main accused. My attention was drawn to sub-Section 4 of Section
\n\t216 of the Cr.P.C. and submitted that in such situation, the trial
\n\tCourt should have directed trial afresh and, thereafter, the
\n\tjudgment should have been pronounced.\n<\/p>\n
4.1\tLearned
\n\tadvocate, Mr.Thakkar, for the applicant   accused No.1 submitted
\n\tthat considering the evidence of FI, it is quite clear that there is
\n\toutright violation of Rule 14 of the PFA Rules, in the sense that no
\n\tevidence is adduced by the FI as to who, how and when the glass jars
\n\twherein turmeric powder was collected for the purpose of sample were
\n\tcleaned and dried. It is, therefore, submitted that the
\n\tnon-compliance of mandatory provisions contained under Rule 14 would
\n\tbe sufficient enough to acquit the applicant   accused.\n<\/p>\n
4.2\tLearned
\n\tadvocate, Mr.Thakkar, for the applicant   accused further
\n\tsubmitted that considering the evidence of FI and the relevant
\n\tprovisions of the PFA Rules, it is clear that the FI was not
\n\tpossessing requisite qualification.\n<\/p>\n
4.3\tUltimately,
\n\tit is submitted that the revision application may be allowed and the
\n\timpugned judgments rendered by the trial Court and by the first
\n\tAppellate Court be set-aside and the applicant   original accused
\n\tNo.1 be acquitted of all the charges levelled against him.\n<\/p>\n
Learned
\n\tA.P.P., Mr.Sejpal, for the respondent State vehemently opposed this
\n\tappeal. It is submitted that the powers vested in this Court u\/s.397
\n\tr\/w.Section 401 of the Cr.P.C. are very limited. In the instant
\n\tcase, there is a concurrent finding of two subordinate Courts to the
\n\teffect that all the mandatory requirements laid down under the PFA
\n\tAct and the PFA Rules have been duly and fully complied with. It is,
\n\ttherefore, submitted that the contentions raised on behalf of the
\n\tapplicant about non-compliance of mandatory requirements, is not
\n\trequired to be considered.\n<\/p>\n
5.1\tLearned
\n\tA.P.P., Mr.Sejpal, for the respondent   State further submitted
\n\tthat in this case, after the charge was altered by the trial Court,
\n\tnone of the accused requested the trial Court to permit further
\n\tcross-examination of any of the witnesses examined by the
\n\tprosecution. That, therefore, the trial Court cannot be said to have
\n\tcommitted any irregularity which would vitiate the proceedings.\n<\/p>\n
5.2\tUltimately,
\n\tit is submitted that the revision application may be dismissed.\n<\/p>\n
I
\n\thave examined the record and proceedings in context with the
\n\tsubmissions made by the rival sides.\n<\/p>\n
At
\n\tthe outset, it is required to be considered that the prosecution
\n\tcase, as it stood, was to the effect that at the time when the FI
\n\tlifted sample of turmeric powder, at that time, applicant
\n\toriginal accused No.1 Sanjay was present in the shop and the shop
\n\twas owned by original accused No.2 Ratilal Chandulal Shah. In the
\n\taforesaid background, if the initial charge framed by the trial
\n\tCourt at Exh.90 is considered, the situation seems to be otherwise,
\n\tin the sense that, the original accused No.2 Ratilal was described
\n\tas the person who was present in the shop at the time when the FI
\n\tlifted the sample. On the basis of such charge, the entire oral and
\n\tdocumentary evidence was adduced by the prosecution and the trial
\n\tCourt recorded further statements of both the accused under Section
\n\t313 of the Cr.P.C. When the trial Court posted the criminal case for
\n\tpronouncement of judgment, on behalf of the complainant FI, an
\n\tapplication was tendered before the trial Court at Exh.111 for
\n\talteration of charge, requesting that the charge may be altered to
\n\tthe effect that at the time when the sample was lifted by the FI,
\n\taccused No.1 Sanjay was present. It appears that said application
\n\tcame to be allowed by the trial Court on dated 31.5.1995. However,
\n\tit is true that both the accused were asked as to whether they
\n\tpleaded guilty to the altered charge or not and none of them pleaded
\n\tguilty. Thereafter, the trial Court rendered the impugned judgment
\n\tand order recording the conviction of the applicant   accused No.1
\n\tdated 7.6.1995.\n<\/p>\n
In
\n\tthis respect, considering Section 216 of the Cr.P.C., it is true
\n\tthat the powers are given to the Courts to alter or add to any
\n\tcharge at any time before judgment is pronounced. However,
\n\tconsidering sub-Section 4 of Section 216 of the Cr.P.C., if the
\n\talteration or addition to the charge is such, which would prejudice
\n\tthe accused, the Court may either direct a new trial or adjourn the
\n\ttrial for such period as may be necessary. As provided under Section
\n\t217 of the Cr.P.C., whenever a charge is altered or added to by the
\n\tCourt after the commencement of the trial, the prosecutor and the
\n\taccused shall be allowed to recall witnesses. Thus, in the instant
\n\tcase, considering sub-Section 4 of Section 216 r\/w.Section 217 of
\n\tthe Cr.P.C., there seems to be justification in the submission made
\n\tby the learned advocate Mr.Thakkar for the applicant   original
\n\taccused No.1 that great prejudice was caused to the applicant
\n\toriginal accused No.1 when the charge was altered and by way of the
\n\talteration, the role attributed to individual accused in the initial
\n\tcharge came to be changed.\n<\/p>\n
Over
\n\tand above this, if the evidence of FI is considered, it transpires
\n\tthat according to him, sample of turmeric powder came to be
\n\tcollected in three clean and dried glass jars. In his
\n\tcross-examination, he stated that at the time when he visited the
\n\tshop, the jars were carried by him. In this connection, learned
\n\tadvocate Mr.Thakkar for the applicant   accused relied upon a case
\n\tof State of Gujarat Vs.Bhupendra N.Mehta reported
\n\tin 2000(1) GLH 679. Perusing
\n\tthe fact of the said case, it appears that there was no specific
\n\tevidence about sample bottles were dried and cleaned. In that case,
\n\tFI in his evidence stated that the sample was poured in three dry
\n\tand clean bottles. This Court observed that this cannot be said to
\n\tbe due compliance of Rule 14 of the PFA Rules and came to the
\n\tconclusion that no specific evidence about the sample bottles being
\n\tdry and clean was adduced.\n<\/p>\n
9.1\tReliance
\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 and the acquittal order rendered
\n\tby the trial Court came to be confirmed. About Rule 14 of the PFA
\n\tRules, similar observation
\n\twas made in the case of State of Gujarat thro’ SS Patel,
\n\tFood Inspector 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
\tIn
\n\tlight of the above discussions, I am of the opinion that in the
\n\tinstant case, there is non-compliance of mandatory requirements laid
\n\tdown under the PFA Rules. When such is the situation, I do not find
\n\tany necessity to consider other contentions raised on behalf of the
\n\tapplicant regarding qualification of the FI etc.<\/p>\n
\tIn
\n\tthe result, in light of the above discussions, I am of the opinion
\n\tthat the revision application deserves to be allowed and the
\n\timpugned judgment rendered by the trial Court which came to be
\n\tconfirmed by the first Appellate Court deserves to be set-aside.\n<\/p>\n
For
\n\tthe foregoing reasons, the revision application is allowed. The
\n\timpugned judgment and order rendered by the learned Additional
\n\tSessions Judge, Panchmahals
\n\tat Godhra on dated 13.6.2000 in Criminal Appeal No.22 of 1995
\n\twhereby the judgment and order recording conviction of the applicant
\n\t  original accused No.1 Sanjay Ratilal Shah by learned Judicial
\n\tMagistrate First Class, Lunavada on dated 7.6.1995 for the offence
\n\tpunishable under Section 16 read with 7 of the PFA Act and the
\n\tsentence awarded to the applicant thereunder came to be confirmed by
\n\tthe learned Additional Sessions Judge, Panchmahals at Godhra in the
\n\taforesaid criminal appeal are set-aside. The applicant Sanjay
\n\tRatilal Shah is acquitted of the charges levelled against him. Fine,
\n\tif paid, be refunded to him. His bail bond shall stand cancelled.
\n\tRule is made absolute accordingly.\n<\/p>\n
(J.C.UPADHYAYA,
\nJ.)<\/p>\n
(binoy)c<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Sanjay vs State on 17 February, 2010 Author: J.C.Upadhyaya,&Nbsp; Gujarat High Court Case Information System Print CR.RA\/240\/2000 8\/ 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 240 of 2000 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-4917","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nSanjay vs State on 17 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\/sanjay-vs-state-on-17-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sanjay vs State on 17 February, 2010 - 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