CR.A/42/2003 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 42 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE S.R.BRAHMBHATT ======================================================== 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 ? ======================================================== BHARGAVKUMAR C VAIDYA /OR HIS SUCCESSOR VINESH M SHAH - Appellant Versus STATE OF GUJARAT & 2 – Opponent(s) ======================================================== Appearance : MR KG PANDIT for Petitioner MR. K.C. SHAH, LD. APP for Respondent No: 1. MR MM TIRMIZI for Respondent No(s).: 2,3. ===================================================== CORAM : HON'BLE MR.JUSTICE S.R.BRAHMBHATT Date : 27/07/2005 CR.A/42/2003 2/17 JUDGMENT ORAL JUDGMENT 1.The Khambhat Nagarpalika through its Food Inspector preferred the present Criminal Appeal under section 378 of the Code of Criminal Procedure, 1973 challenging the impugned order of acquittal dated 4-2-2002 passed by learned JMFC, Khambhat in Criminal Case No. 1256 of 1992 whereby Respondents No.2 & 3 / original accused were let off without subjecting them for the trial in respect of the allegation of offence under section 2(1-A) (A), 2(1-A) ( C), 2(1-A) (M) & under section 7(1), 7 (5)and punishable under section 16 of the Prevention of Food Adulteration Act,1954. This Court (Coram: R.P. Dholakia, J) has granted leave and admitted the appeal vide order dated 16-12- 2002, and ordered hearing of the appeal in the second week of February, 2003. 2. The case of the appellant in short is that the original complainant – Food Inspector had visited the shop of the accused on 13-11-1990 at 4.30 p.m. in the evening in presence of one panch witness in CR.A/42/2003 3/17 JUDGMENT Tinbati area of Khambhat. The shop in question was run under the name of Jay Ambe Sweet Mart. The accused no.2 was in the shop and the shop was in the name of Pravinchand Somchand Rana – accused No.1. In presence of panch witness the complainant purchased 700 gram of sweet popularly known as 'Chikuno halvo' in the vernacular language, for the purpose of analysis. The requisite notice in form no.6 was issued which was received by Kamlesh Somchand Rana on behalf of Pravinchand Somchand Rana in presence of panch witness. The price for the sample food article Rs.21=00 was paid and requisite cash memo and receipt was obtained thereof. The said food article was thereafter divided into three equal parts and collected in 3 clean and dried bottles and thereafter properly sealed so as to avoid any moisture or other substance from entering in. After wrapping it properly in accordance with law and applying seal, serial number etc. as prescribed under the law and drawing panchnama of the said facts, one portion of the food sample was sent to Public Analyst at Vadodara under letter dated 14-11-1990 and a CR.A/42/2003 4/17 JUDGMENT separate memorandum of specimen of seal was also sent as required under law. The remaining 2 portion of sample food article was sent to Local Health Authority in due compliance with the provisions of law. It is stated in the complaint that the public Analyst sent his report dated 3-12-1990 which seems to have been received by Local Health Authority on 5-12-1990. Thereafter Local Health Authority accorded sanction for lodging prosecution on 5-3- 1992 and the complaint came to be lodged on 8-5- 1992. The accused made an application at exhibit-6 on 17-6-1993 praying discharge from the charges levelled against them. Learned trial court passed detailed order on 25-10-1993 below application exhibit-6 stating that the application deserves to be rejected in view of the fact that it is essential to record the evidence. The accused thereafter made an application on 13-3-1995 at exhibit-21 requesting the trial court to send the sample food article lying with Local Health Authority for further analysis to the Central Food Laboratory in accordance with the provisions of section 13(2) of the Prevention of Food CR.A/42/2003 5/17 JUDGMENT Adulteration Act, 1954 (hereinafter referred to as the 'Act'). It seems that the said application was allowed and the trial court ordered that the sample food article be called from the Local Health Authority so as to enable the court to send it to Central Food Laboratory for its further analysis. Thereafter, time & again the matter was listed and the rojkam as it is seen from the record indicates that the case did not proceed further as the report from the Central Food Laboratory was awaited. It is important to note at this stage that under the mandate of section 13(2) (d) the court has to wait for the report from the Central Food Laboratory. Ultimately on 4-2-2002 the trial court passed an order below exhibit-1 that the application for discharge of the accused was rejected and the matter was to be decided on the basis of the evidences and therefore, the matter was kept for evidence since 25-10-1993. The trial court has further observed that though the matter was pending for evidence since 25-10-1993 no further evidence has been adduced by the prosecution and the accused have remain present almost on all the occasions. In CR.A/42/2003 6/17 JUDGMENT view of the circumstances narrated therein the trial court thought it fit to acquit the accused for want of evidence on record. This order is assailed in the present appeal. 3. Shri. Pandit, learned counsel appearing on behalf of the appellant has vehemently urged that the order impugned is erroneous and ought not to have passed in view of the fact that complaint clearly disclosed the commission of offence under the PFA Act, 1954 and the report of the public Analyst go to show that the food sample was adulterated as it was not in conformity with the standards laid down under Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the 'Rules'). Shri. Pandit has further urged that the trial court ought to have drawn necessary charges and ought to have conducted full-fledged trial before ordering acquittal of accused of the serious offences under the PFA Act, 1954. Shri. Pandit has urged that the trial court ought not to have held that there was no evidence on record so as to warrant the trial. He has further urged that the trial court had not CR.A/42/2003 7/17 JUDGMENT afforded sufficient opportunity to the prosecution to prove its case as it is required under law. Shri. Pandit has further urged that the trial court cold not have ignored the report of the Public Analyst which in terms states that the sample food article contained aluminium which is injurious to health. He has further urged that if said acquittal orders are upheld then it would amount to giving premium to the persons like the accused to indulge into such kind of adulteration time & again. Shri. Pandit has also submitted that it was not open to the trial court to brush aside the observations made by his predecessor in his order dated 25-10- 1993 while rejecting the discharge application at exhibit-6. 4. Shri. Tirmizi appearing on behalf of respondents no. 2 & 3 has submitted that the order of acquittal impugned in the present appeal deserves to be upheld. It is submitted on behalf of the respondents that this being an acquittal appeal and when the record & proceedings are before the court the respondents have legitimate right to support CR.A/42/2003 8/17 JUDGMENT the conclusion of acquittal even independent of the reasoning given by the trial court for acquitting the accused. This proposition of law could not be controverted either by Shri. Shah, learned APP on behalf of the State or by Shri. Pandit, learned counsel appearing on behalf of the appellant. In view of this, this Court is inclined to examine the entire proceedings as they stand on record. 5. The following undisputed facts deserve to be set out so as to depict the conduct of the entire case. It is evidence that the sample food article in question was collected on 13-11-1990. Part of the sample food article was sent to Public Analyst by the Food Inspector on 14-11-1990. On the very same day the remaining 2 parts were sent to Local Health Authority by the Food Inspector. As it is evident from the record, the report of Public Analyst dated 3-12-1990 was received in the office of Local Health Authority on 5-12-1990. After receiving of the report as it is time & again held by the Apex Court and by this Court that prompt actions were warranted if the report contained factum of CR.A/42/2003 9/17 JUDGMENT adulteration. In the instant case no action was initiated either by Local Health Authority or by concerned Food Inspector though the report of the Public Analyst was received on 5-12-1990. The record shows that after a passage of time i.e. 15 months the Local Health Authority forwarded the report to the Food Inspector under his letter dated 5-3-1992 and accorded sanction for lodging prosecution. This delay of about 15 months in according the sanction for lodging prosecution remain unexplained. No explanation has been even attempted in the complaint memo or in the memo of appeal. It is further observed that though the sanction for lodging prosecution was accorded on 5- 3-192 the complaint came to be lodged only on 8-5- 1992. Again as it is observed there appears to be an unexplained delay of 2 months in lodging the complaint. It is the case of the defence as it appears from their application that the notice under section 13(2) affording them an opportunity of having the sample further analysed by Central Food Laboratory was never received by them and without prejudice to their right to contend non CR.A/42/2003 10/17 JUDGMENT receipt or non issuance of notice they had requested to the trial court vide their application at exhibit-21 on 13-3-1995 for sending the sample to the Central Food Laboratory. It is very important to note at this stage that there seems to be no resistance by the prosecution for such an application. Shri. Pandit has submitted that the prosecution could not have resisted this application as it was a right enuring in the accused to have the sample further tested by the Central Food Laboratory. In view of this, the fact deserves to be noted that the court passed an order of allowing the said application for sending the sample for further testing and analysis at the Central Food Laboratory. Thereafter time & again as the rojkam shows the matter was adjourned for want of presence of either prosecution or the accused and on various occasions it is observed by the court as it is appearing in the rojkam that the report from the Central Food Laboratory, Gaziabad was awaited. In view of this backdrop the acquittal order impugned in this appeal deserves to be viewed independent of the reasoning for acquittal recorded CR.A/42/2003 11/17 JUDGMENT by the trial court. 6. It is an undisputed fact that the provisions of section 13(2) and 2 (b) are mandatory in nature and due compliance thereof is an essential rule for bringing home the charge under the PFA Act, 1954. Section 13(2) makes it incumbent upon he Local Health Authority to send a copy of the report to the Public Analyst along with the notice informing the accused that they have a right to have the food article further examined at Central Food Laboratory after the institution of the complaint. Section 13(2) read with Rule-9 makes it clear that the provision of informing the accused by the Local Health Authority after institution of the complaint about his right to have the food article examined by Central Food Laboratory along with the report of the Public Analyst is a mandatory requirement and it is the bounden duty cast upon the prosecution to prove the same. In the instant case the documents available on record go to show that the compliance with section 13(2) was not beyond pale of doubt. The very fact of delay in lodging the prosecution CR.A/42/2003 12/17 JUDGMENT amounts to vitiating the case of the prosecution. Shri. Tirmizi has relied upon a case of SALIM YUNUS SUPARIWALA VS. STATE OF GUJARAT, reported in 2005(1) GLR pg. 331 wherein this Court has observed as under: “ Para-9: This aspect should be appreciated in light of the language of the letters written by the learned Judicial Magistrate (F.C.), Pardi, to the Director of C.F.L., on various dates on earlier occasions. It is settled that the legal impact of a certificate of the Director of C.F.L. is that it annuls or replaces the report of the Public Analyst. It gains finality regarding quality and standard of food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned; and the right of the accused to have the sample analyzed by the C.F.L. is not only a valuable right, but it is also in order that for his (accused) own satisfaction and proper defence. The impact of the certificate given by the Director of C.F.L., is threefold. It annuls or replaces the report of CR.A/42/2003 13/17 JUDGMENT the Public Analyst, it gains finality regarding the quality and standard of the food article involved and it becomes irrefutable so far as the facts stated therein are concerned, and therefore, this provision has been held mandatory by the Apex Court, this Court and other High Courts. The ratio of the decision in the case of Calcutta Municipal Corporation v. Pawan K. Saraf, reported in 1999 (1) FAC 8, positively helps the present petitioner. Technically in the present case, it can also be said that failure on the part of the C.F.L., to send the report of analysis within one month would adversely affect the case of the prosecution and the petitioner- accused can successfully submit that it is non compliance of the mandatory provisions, and therefore, the same vitiates the prosecution. The case of Motilal Agrawal v. Delhi Administration, reported in 1998 (2) FAC 329, also helps the accused, wherein the Delhi High Court has held that unusual delay taking place at the end of Director in analyzing the sample obviously prejudices the case of the accused. It is not CR.A/42/2003 14/17 JUDGMENT necessary to refer to the case of Chetumal v. State of M.P., reported in 1981 (1) FAC 280, wherein the Court has held that there is no scope to fall back upon the report of the Public Analyst on the moment on which the C.F.L., analyses the sample. So, it can be said that considering the entire scheme of Sec. 13 of the P.F.A. Act, when the learned Magistrate sends a sample for analysis to C.F.L. And the same is received by he C.F.L., then practically the finding recording by the Public Analyst would become redundant or not of much help to the prosecution because the opinion of C.F.L., may or may not favour the prosecution. “ Shri. Pandit fairly concedes that in view of this decision the unexplained delay on the part of prosecution agency in lodging complaint can legitimately press into service in supporting the acquittal of the accused. 7. Shri. Tirmizi has further invited this Court's CR.A/42/2003 15/17 JUDGMENT attention to the ruling of Apex Court in case of CALCUTTA MUNICIPAL CORPORATION Vs. PAWAN KUMAR SARAF AND ANOTHER, reported in 1999 Cri.L.J. pg. 1125. The observations of the Apex Court in para-10 and 11 deserves to be set out. “ Para-10: Sub-section (2-B) of Section 13 requires the Court to dispatch one of the parts of the sample under its own seal to the Director of Central Food Laboratory. Once it is despatched it is the duty of the said Director to send a Certificate to the Court “in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.” Sub-section (3) of Section 13 is important in this context and is extracted below: “ The certificate issued by the Director of the Central Food laboratory under sub-section (2-B) shall supersede the report given by the public analyst under sub-section (1)”. CR.A/42/2003 16/17 JUDGMENT “Para-11: When the statute says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The work “supersede” in law, means “obliterate, set aside, annul, replace, make void or inefficacious or useless, repeal.” (vide Black's Law Dictionary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the Court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it. “ 8. The aforesaid rulings would conclusively show that, on the face of it, the delay in instituting the proceedings has gravely prejudiced the accused, and therefore, though this Court is not in complete agreement with the reasonings of the learned trial Court, this Court is of the view that the acquittal order recorded by the trial court need not call for any interference at this stage. In view of this, the appeal deserves to be dismissed and is accordingly dismissed, and the acquittal order passed by the trial court is confirmed. CR.A/42/2003 17/17 JUDGMENT [ S.R. BRAHMBHATT, J ] /vgn