IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 104 of 1993 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- STATE OF GUJARAT Versus SINDHI SHANKERLAL M PANJWANI -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 104 of 1993 MR ND GOHIL, APP for Appellant MR LM CHHABLANI for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL Date of decision: 08/07/2004 ORAL JUDGEMENT Instant appeal filed under Section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short) is directed against judgment dated October 22, 1992 rendered by the learned Judicial Magistrate First Class, Kalol, in Criminal Case No.3152 of 1987 by which the respondent is acquitted of the offences punishable under Sections 16(1)(a)(i) and 7 of the Prevention of Food Adulteration Act, 1954 ("the Act" for short). 2. In July 1987, complainant, Sumanchandra Bothalal Trivedi, was discharging duties as Food Inspector of Kalol Municipality. The respondent is running a shop situated in Sindhi Bazaar, Station Road, Kalol. On July 31, 1987, at about 6.30 p.m., the Food Inspector had visited the shop of the respondent with Mr.H.K.Trivedi, who was then discharging duties as Sanitary Inspector of Kalol Municipality and found that the respondent was selling coconut oil. He was desirous of taking sample of the same for analysis. The Food Inspector had called Hiranand Asudomal to be present at the time when the sample was to be taken. After introducing himself, the Food Inspector had given notice in writing then and there to the respondent declaring his intention to purchase the article of food for the purpose of analysis. It may be stated that notice which was given to the respondent was in prescribed Form VI. After giving intimation, as referred to above, the Food Inspector had purchased 400 Gms. of coconut oil from the respondent and made payment of Rs.16=00 to the respondent for which the respondent had issued a receipt. The Food Inspector had, thereafter, divided the sample then and there into three parts and marked and sealed each part in three different clean and dry bottles. On the sample bottles, a slip bearing signatures of Food Inspector himself, the respondent and the panch witness was affixed. One of the samples was sent for analysis to the Public Analyst under intimation to the Local Health Authority whereas the remaining sample bottles were sent to the Local Health Authority for the purpose of subsection (2) of Section 11 and Section 13 of the Act. The sample sent to the Public Analyst was analysed and his report indicated that the the sample was not conforming to the standards laid down under the Prevention of Food Adulteration Rules, 1955 ("the Rules" for short). As the sample of food purchased from the shop of the respondent was found to be adulterated within the meaning of the Act, the Food Inspector had applied for written consent of the competent authority to lodge the prosecution against the respondent. The competent authority had granted written consent to institute prosecution against the respondent. Therefore, the Food Inspector had filed complaint against the respondent in the Court of learned Judicial Magistrate First Class, Kalol, and prayed the Court to convict the respondent of the offences punishable under Section 16(1)(a)(i) and 7 of the Act. 3. The complaint lodged by the Food Inspector was registered as Criminal Case No.3152 of 1987, and an order was passed by the learned Magistrate to issue summons to the respondent. On service of summons, the respondent had appeared before the Court and necessary papers relating to the case lodged against him were supplied to him. Before framing charge against the respondent, the learned Judge had recorded evidence of complainant, Sumanchandra Bothalal Trivedi, at Exh.13. Perusal of testimony of the complainant and the documents produced by him indicated, prima facie, that the respondent had committed offence under the Act. Therefore, the learned Magistrate had framed charge against the respondent at Exh.30. The charge was read over and explained to the respondent who had pleaded not guilty to the same and claimed to be tried. Therefore, the complainant had tendered further evidence in the case. Mr.Kantilal Hargovinddas Trivedi, who was then employed as Sanitary Inspector with Kalol Municipality, was examined as P.W-2 at Exh.34 whereas Ghanshyambhai Somabhai Soni, who was then Local Health Authority, was examined as P.W.-3 at Exh.39. After recording of evidence of the complainant and his witnesses was over, the learned Magistrate had explained to the respondent the circumstances appearing against him in the evidence of witnesses examined, and recorded his further statement as required by Section 313 of the Code. In his further statement, the claim of the respondent was that the complainant and witness Kantilal had taken samples in his absence and had completed the sealing procedure and the sample given by him was not food within the meaning of the Act. It may be stated that the respondent had examined Dilipkumar Chinubhai Sheth as D.W.-1 at Exh.51 to establish that coconut oil which was purchased by the Food Inspector from the shop of the respondent was not food within the meaning of the Act. 4. On appreciation of evidence adduced by the parties, the learned Magistrate held that though it was proved by the complainant that the quality and purity of article of food was below the prescribed standards and its constituents were present in the quantity not within the prescribed limits of variability, it was not proved that quality or purity of the article, which was below the prescribed standards, and variation in constituents had rendered the sample injurious to health and, therefore, the case of the prosecution was liable to fail. According to the learned Magistrate, Exh.14, which was notice served by the complainant by which the Food Inspector had declared his intention to purchase the sample of food for the purpose of analysis was not bearing signature of the panch witness and, therefore, it was not proved that the complainant had complied with the provisions of Section 10(7) of the Act by calling one independent person to be present at the time when the sample was taken and sealed. It was further deduced by the learned Magistrate that it could not be proved by the complainant whether sealing and sampling procedure was undertaken in the shop of the respondent or outside his shop which in turn established that the provisions of Section 11 of the Act were not complied with by the complainant. Lastly, it was held by the learned Magistrate that no notice as contemplated under Section 13(2) of the Act was given to the respondent after institution of prosecution and, thereby valuable right conferred on the respondent by the said provisions was jeopardized which was fatal to the prosecution. In view of abovereferredto conclusions, the learned Judge has acquitted the respondent vide judgment dated October 22, 1992 giving rise to instant appeal. 5. Mr.N.D.Gohil, learned Additional Public Prosecutor for the State, contended that it is not the requirement of law that if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, the prosecution should further prove that quality or purity of the article which is below the prescribed standard or limits of variability in constituents of the article, is injurious to health and, therefore, the finding recorded by the learned Magistrate should be set aside. In support of this contention, the learned counsel has placed reliance on the decision in Smt.Manibai & Another v. The State of Maharashtra, A.I.R. 1974 SC 434. The learned Additional Public Prosecutor further pointed out that it is also not the requirement of law that notice to be given to the person from whom the sample is to be taken, must bear signature of panch witness and, therefore, the learned Judge was not justified in coming to the conclusion that the Food Inspector had failed to call one independent witness to be present at the time when the sample was taken from the respondent as notice Exh.14 was not bearing signature of the panch witness. According to the learned Additional Public Prosecutor, the evidence of the complainant establishes satisfactorily that he had called Hiranand Asudomal to remain present at the time of taking sample from the respondent and, therefore, the learned Judge was not justified in holding that the complainant had committed breach of provisions of Section 10(7) of the Act. The learned counsel of the appellant pointed out to the Court that before recording of evidence of witnesses of the complainant was over, the complainant had submitted a pursis on December 18, 1991 at Exh.44 mentioning, inter alia, that Hiranand Asudomal, who had acted as panch witness, had expired at Ahmedabad on December 14, 1990 and, therefore, it was not possible to examine him as one of the witnesses in the case, and along with the said application, the complainant had also produced, a xerox copy of the death certificate issued by the competent authority under the provisions of the Registration of Birth & Deaths Act, 1969 which indicated that Hiranand Asudomal Thavandas Aswani had expired at Ahmedabad on December 14, 1990. After pointing out these relevant facts, it was argued that the panch witness could not be examined in the case because he had expired before his evidence could be tendered, but that does not affect the reliable assertion made by the Food Inspector that he had called Hiranand Asudomal to be present at the time when sample was taken and sealed, and as, in fact, Hiranand Asudomal, had remained present when the sample was taken, the finding that Section 10(7) was committed breach of deserves to be set aside. The learned counsel of the appellant emphasised that the assertion made by the Food Inspector that he had called Hiranand Asudomal to be present at the time when the sample was taken and sealed, gets corroboration from the testimony of witness, Kantilal Hargovinddas Trivedi, who was then Sanitary Inspector of the Municipality and, therefore, the learned Magistrate was not justified in coming to the conclusion that the provisions of Section 10(7) of the Act were not complied with by the complainant. It was urged by the learned counsel of the State Government that not only the Food Inspector had given notice in writing then and there of his intention to purchase the sample for the purpose of analysis, but he had divided the sample then and there into three parts and marked as well as sealed and fastened up each part in the manner prescribed and had also sent one part for analysis to the Public Analyst and remaining two parts to the Local Health Authority and, therefore, it is not understood as to why the learned Magistrate has come to the conclusion that the provisions of Section 11 of the Act were not complied with by the Food Inspector. What was argued was that the finding recorded by the learned Magistrate that the complainant had committed breach of provisions of Section 11 of the Act is contrary to the evidence on record and is, therefore, liable to be set aside. While dealing with breach of Section 13(2) of the Act, the learned Additional Public Prosecutor took pains to point out that after institution of prosecution against the respondent, a copy of the report of result of analysis was forwarded by witness, Ghanshyamhai Somabhai Soni, to the respondent by registered Post A.D., whereas Exh.40, which is postal acknowledgment slip shows that in token of having received the copy of the report of analysis, the respondent had signed the same and, therefore, the finding of the learned Magistrate that the provisions of Section 13(2) of the Act were not complied with, should be set aside. It was argued that the learned Magistrate has failed to appreciate the evidence on record in its true perspective, and has recorded findings of facts which are contrary to the evidence on record and, therefore, the appeal should be accepted. 6. Mr.L.M.Chhablani, learned counsel of the respondent, did not support the finding recorded by the learned Magistrate to the effect that though the article of food was below the prescribed standards or its constituents were present in quantities not within the prescribed limits of variability, the prosecution was liable to fail as it had not proved that the quality or purity of the article of food which was below the prescribed standards or variation in constituents prescribed, was injurious to health. However, it was emphatically argued by the learned counsel of the respondent that the evidence on record does not establish that the Food Inspector had called one person to be present at the time when the sample was taken and, therefore, the acquittal of the respondent recorded by the learned Magistrate on the ground that there is breach of provisions of Section 10(7) of the Act should be upheld by the Court so also the learned counsel of the respondent did not support the finding recorded by the learned Magistrate to the effect that the Food Inspector had committed breach of the provisions of Section 11 of the Act nor could point out to this Court as to how and in which manner the Food Inspector had failed to comply with the provisions of Section 11 of the Act. After looking to the signature of the respondent on Exh.40, which is a postal acknowledgment receipt, and satisfying himself that Exh.40 bears signature of the respondent, no plea was advanced by the learned counsel of the respondent regarding so-called breach of provisions of Section 13(2) of the Act. However, what was contended by the learned counsel of the respondent was that the testimony of the Food Inspector shows that slip on the sample bottle was bearing signature of the Food Inspector, the respondent and the panch witness; whereas the testimony of witness, Ghanshyambhai Soni, indicates that the slip on the sample bottle was bearing signature of the Food Inspector and the respondent, as a result of which it was not established by the prosecution that the sample bottle which was prepared at the spot was sent to the laboratory for analysis and, therefore, the judgment of the acquittal should be upheld by this Court. It was further argued by the learned counsel of the respondent that the testimony of the Food Inspector shows that the slip, which was affixed on the sample bottle, was bearing his signature, signature of the respondent and signature of the panch witness whereas the testimony of witness, Kantilal H.Trivedi at Exh.34 shows that there was no signature of the Food Inspector on the slip which was affixed on the sample bottle and, therefore, the case of the complainant that he had visited the shop of the respondent, and had taken the sample of coconut oil which was ultimately found to be adulterated, becomes highly doubtful. Lastly, it was argued that if the Court comes to a conclusion that commission of offences by the respondent punishable under Sections 16(1)(a)(i) and 7 of the Act is established, the respondent should be granted benefit of the Probation of Offenders Act as he is being convicted after a long period. 7. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 8. As noticed earlier, the first ground of acquittal recorded by the learned Magistrate is that the quality or purity of the article which was falling below the prescribed standard or presence of constituents in quantities which was not within the prescribed limits of variability, had not rendered the article of food injurious to health and, therefore, the prosecution was liable to fail. In this connection, it would be necessary to reproduce relevant part of Section 2 of the Act, which is as under: "2. Definitions.- In this Act unless the context otherwise requires,- (i-a) "adulterated" - an article of food shall be deemed to be adulterated- xxx xxx xxx (l) if the quality or purity of the article falls below the prescribed standards or it constituents are present in quantities not within the prescribed limits of variability but which renders it injurious to health; (m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to heath: Provided that, where the quality or purity of the article, being a primary food has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause. Explanation.- Where two or more articles of primary food are mixed together and the resultant article of food- (a) is stored, sold or distributed under a name which denotes the ingredients thereof; and (b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause." A bare reading of the abovequoted provisions makes it evident that if the quality or purity of the articles falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, the article of the food will have to be regarded as adulterated one whether fall in the quality or purity of the article below the prescribed standards or limits of variability of its constituents renders the article of food injurious to health or not. The distinction between clause (l) and clause (m) of Section 2(i-a) is that if an article of food is rendered injurious to health, case would fall under clause (l) and the minimum punishment prescribed for an article of food which is rendered injurious to health is imprisonment of one year whereas if an article of food is not rendered injurious to health, but is found to be adulterated within the meaning of clause (m) then the minimum punishment prescribed is imprisonment for six months. Once it is proved by the prosecution that quality or purity of the article falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, commission of offence within the meaning of Section 2(i-a)(m) is complete and it is not necessary for the prosecution to further prove that because of fall in the quality or purity of the article below the prescribed standard or presence of its constituents in quantities not within the limits of variability prescribed by the statute is injurious to health. In Smt. Manibai & Anr. (supra), the Supreme Court has ruled that in a prosecution of sale of adulterated article of food, it is not for the prosecution to show that the article was deleterious to health and if so, how much harmful effect it would have upon the health of the person consuming it. According to the Supreme Court, all that is required to be shown is that the article of food in question was adulterated. The Supreme Court has explained in the said case that according to Section 2, an article of food shall be deemed to be adulterated if inter alia the quality or purity of the article falls below the prescribed limits and the prosecution need not further show that the adulterated article of food in question was deleterious to health. Again in K.Krishna Iyer v. State of Kerala, 1993 Cri. L.J. 2606, article of food `ice-stick' sold by accused was found to be not falling under any sub-clauses (e) to (l) of Section 2(i-a) of the Act nor containing an adulterant injurious to health. Under the circumstances, conviction of the accused under Section 16(1-A) of the Act was set aside by the Supreme Court. However, it was found that said article was containing artificial sweetener Saccharin without conforming to standards prescribed in Rules. The Supreme Court has ruled that if article of food does not conform to standards prescribed in Rules, it will have to be regarded as adulterated within meaning of Section 2(i-a)(m) and after so holding conviction of accused in that case was altered from Section 16(1-A) to Section 16(1)(a)(i) of the Act. On reading provisions of Section 2 of the Act, it becomes at once clear that the standards having been fixed, any person who deals in articles of food which do not conform with the said standards, contravenes the provisions of the Act. The fact that the sample was not injurious to health would not mean that it was not adulterated because there may be many kinds of adulteration and even though the adulterated article may not be injurious to health, it would still be adulterated for which the concerned person would be liable. Thus, the first ground of the acquittal recorded by the learned Magistrate is not in accordance with law and, therefore, the same is hereby reversed. 9. The second ground which has weighed with the learned Magistrate in recording acquittal of the respondent is that the Food Inspector had committed breach of provisions of Section 10(7) of the Act by not calling one person to remain present at the time when the sample was taken. So far as this point is concerned, this Court finds that Food Inspector, Mr.S.B.Trivedi, has, in terms, stated that he had called Hiranand Asudomal to be present at the time when the sample was taken. According to the Food Inspector, the notice in Form No.VI was also served on the respondent in presence of panch witness Hiranand Asudomal, and that the sample was divided into three equal parts in presence of panch witness. What is mentioned by the Food Inspector in his testimony before the Court is that all the three samples were sealed in the manner prescribed in the presence of panch witness. Though the Food Inspector was searchingly cross-examined, nothing could be brought on record so as to doubt his assertion that he had called Hiranand Asudomal to be present at the time when the sample was taken. The assertion of the Food Inspector that he had called Hiranand Asudomal to be present at the time when the sample was taken from the respondent, stands completely corroborated by sworn testimony of Kantilal H. Trivedi, P.W.-2, Exh. 34, who was then Sanitary Supervisor of Kalol Municipality. Witness, Kantilal H. Trivedi, has, in terms, stated that the Food Inspector had called Hiranand Asudomal to be present at the time when the sample was taken and that panchnama regarding taking of sample and sealing the same was drawn in his presence and that in his presence, panch Hiranand Asudomal had signed the panchnama. Though this witness was also cross-examined by the defence, nothing could be brought on record which would raise a doubt about the statement made by this witness in his examination-in-chief to the effect that Hiranand Asudomal was called by the Food Inspector to be present at the time when the sample was taken and that the said panch witness was all throughout present till the panchnama was drawn. The learned Magistrate has come to the conclusion that the provisions of Section 10(7) of the Act were not complied with because, according to the learned Magistrate, the notice which was given by the Food Inspector to the respondent intimating that he was desirous of purchasing the sample for