CR.A/660/1999 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 660 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 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 MANGILAL SHAH & 2 - Opponent(s) ========================================================= Appearance : MR HL JANI, ADDL. PUBLIC PROSECUTOR for Appellant(s) : 1, MR SHAKEEL A QURESHI for Opponent(s) : 1, MR MK OZA for Opponent(s) : 2, MR GN MANSURI for Opponent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 04/12/2008 ORAL JUDGMENT 1. I have heard Mr. H.L. Jani, learned APP appearing for the appellant State. Learned counsel appearing for the respondents are absent. It appears that this appeal has been listed suddenly on account of some administrative exigency and therefore, learned CR.A/660/1999 2/6 JUDGMENT counsel appearing for the respondents-original accused may not be even aware about listing of the appeal. On perusal of the papers, the Court found that it is possible for the Court to hear and decide the appeal with the assistance of learned APP for the appellant State and therefore, the Court has decided to hear this appeal. The parties are referred to in their original position as were before the trial court, i.e. Appellant as “complainant” and respondents as “accused”. 2. The present appeal is filed by the appellant State challenging the judgment and order of acquittal dated 10th May, 1999, passed by the learned Judicial Magistrate First Class, Shihori, whereby the respondents-accused came to be acquitted from the offences punishable under Sec.7[i] read with Sec. 16[1][a][i] of the Prevention of Food Adulteration Act, 1954 in Sessions Case No. 151 of 1995. According to the prosecution, complainant – Food Inspector Shri A.G. Patel had drawn sample of edible groundnut oil from the shop of accused no.1. At that time, accused no.1 was present at the shop. There were three packed tins branded with sticker of brand; “Prabhat Double Filtered” groundnut oil of 15 kg each. On insistence of the complainant, one of the packed sealed tin was opened and sample was drawn from the said tin. According to the prosecution, these three packed sealed tins of groundnut oil were purchased by accused no.1 from accused no.2 having his wholesale business at Deesa. Accused no.2 was running his business in the name and style of “Prakash Traders”. Complainant found that this groundnut oil was manufactured by M/s. Prabhat Industries having its business place near Power House, Town-Dhoraji, Taluka-Rajkot and accused no.3 was nominee of the manufacturer. Prosecution examined the complainant and other witnesses to prove the charge against the CR.A/660/1999 3/6 JUDGMENT accused but after evaluating the evidence and relevant legal aspects pointed out to the trial court, the learned trial Judge came to a conclusion that all the three accused deserved acquittal. It is the said order of acquittal which has been challenged in the present appeal. 3. Learned trial Judge has recorded acquittal on three major grounds; accused nos. 1 and 2 have been acquitted by the trial court on the ground that as both of them were having purchase bill and at the time of drawing of sample, tin of 15 kg groundnut oil was sealed, under implied warranty, and therefore, the accused nos. 1 and 2 were benefit of doubt and it was held by the trial court they cannot be linked with sub-standard or alleged adulterated sample of the good article drawn in the process by the complainant; second ground was that report of the Central Food Laboratory [CFL] was not exhibited on account of material infirmity. There is no reference as to on which date the sample was analyzed and therefore, contents of the report could not be looked into. When the sample was sent for analysis to the CFL, report of Public Analyst, obviously was not required to be read as per the settled legal position and therefore, it was not either legal or proper for the court to convict the accused. Third ground of acquittal was that there was no evidence on record to show that while sending sample to the CFL, necessary procedure was followed by the Court sending the sample for analysis, more particularly as per the scheme of sub-rule [3] of Rule 4 of Prevention of Food Adulteration Rules, 1955. 4. Sample was drawn in the year 1994. It must have been examined by CFL after the same was received by the CFL after 5th June, 1995 and any time prior to 19th July, 1995. True it is that there is no reference as to within how much period groundnut oil is required CR.A/660/1999 4/6 JUDGMENT to be analyzed. Opinion of the CFL showed thus; “The sample does not conform to the standard of groundnut oil laid down in item no.A.17.03 of PFA Rules[1955] in that saponification value is less than the minimum prescribed limit and Bellier turbidity temperature is above the maximum prescribed limit. The sample is thus adulterated.” Saponification value as per standard must between 188 to 196 and it was found 186.10. Bellier turbidity temperature must be between 39C. To 41 C., but it was found to be 41.3C. There is nothing in evidence to show that on which date the groundnut oil was manufactured. 5. As per the settled legal position, learned trial Judge committed error in observing that the report of CFL was not exhibited and it appears that learned trial Judge, while acquitting the accused persons, did not give appropriate weightage to the finding recorded by the CFL. In view of the decision of this Court in the case of State of Gujarat v. Vishramdas Virumal, reported in 1998 [2] G.L.H. 986, appropriate weightage was required to be given to the report of CFL and no formal proof by examining the analyst was legally required. Alternative argument advanced before the trial Judge was that even for the sake of argument, report of analysis which is marked as “B” is read, it is a case of very small difference [marginal difference]. Nothing injurious to human health was found even by CFL though this case, according to the Court is a case of adulteration, where even the Court could have shown sympathy to the accused, i.e manufacturer who was not present at the time when sample was drawn and sealed. Manufacturer cannot take advantage of this fact situation, but it is possible for him to argue that prosecution ought to have led CR.A/660/1999 5/6 JUDGMENT evidence of cogent and convincing nature to show that sample was forwarded in compliance with sub-rule [3] of Rule 4 of PFA Rules, 1955. Of course, CFL report shows that the sample was received in sealed condition but how and in what manner the same was dispatched has not been brought on record. Learned trial Judge has therefore given advantage to all the three accused by acquitting them. 6. The view taken by the learned trial Judge is possible view and merely because, some other view also could have been taken, would not make the order bad or illegal. 7. As per the settled legal position, jurisdiction of the Court dealing with the acquittal appeal is limited. There is no element of perversity or illegality in the findings recorded by the learned trial Judge. On the contrary, the observations made by this Court in the case of State of Gujarat v. Ramanbhai Dunabhai Patel and others, reported in 1997 [3] GLR 2424 would help the accused. In the said judgment, this Court has observed as under:- “Even otherwise, the prosecution applied for proving that fact by means of its application for additional evidence at Ex. 15 on the record of the appellate proceeding. It transpires from the order passed there below on 8th December 1983 that the prosecution wanted inter alia to prove the fact of compliance with rule 4(3) of the Rules. It appears that, pursuant to the order passed by the learned Additional Sessions Judge below the application at Ex. 15 on the record of the appellate proceeding allowing production of additional evidence, the matter went to the trial court and additional evidence was recorded. Even at that stage no attempt was made to bring on record the material to show compliance with rule 4(3) of the Rules. After seeking an opportunity to lead evidence in that regard and after failing to do so, it would not be open to the prosecution agency to request the court to resort to sec. 114 of the Indian Evidence Act, 1872 for drawal of CR.A/660/1999 6/6 JUDGMENT presumption regarding compliance with rule 4(3) of the Rules”. Therefore, it was not easy for the trial Judge to draw presumption against the accused that sample was sent in compliance with Rule 4[3] of PFA Rules, 1955. 8. For the reasons aforesaid, I do not find any merit in the present appeal and therefore, the same is dismissed and the judgment and order dated 10th May, 1999 passed by the learned Judicial Magistrate First Class, Sinori in Criminal Case No. 151 of 1995 is hereby confirmed. Bail bond stands discharged. [C.K. BUCH, J.] pirzada/-