CR.A/180/1987 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 180 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE 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 ? ================================================= STATE OF GUJARAT - Appellant Versus AMARNATH SUKHARI YADAV & 1 - Opponents ================================================= Appearance : MR MAULIK NANAVATI, APP for Appellant: MR DEEP VYAS for MR DD VYAS for Opponent : 1, NOTICE SERVED for Opponent : 2, ================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 10/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal has been filed by the State of Gujarat CR.A/180/1987 2/6 JUDGMENT against the judgment and order of acquittal dated 26/11/1986 passed by learned Sessions Judge, Valsad at Navsari in Criminal Appeal No. 59 of 1985, whereby the lower Appellate Court has set aside the judgment and order of conviction passed by learned Judicial Magistrate First Class, Pardi, Criminal Complaint No. 2761 of 1985 and thereby acquitting the respondent – original accused of the offence punishable under Section 7(1) and 7 (5) read with section 16 of the Prevention of Food Adulteration act. 2. The prosecution case in brief is that on 14/3/1985, Food Inspector Mr. Gamit visited the shop of respondent and in presence of panchas purchased 600 grams of curd. The said curd was divided into three equal parts and he prepared three separate samples of 200 grams, each kept in the separate bottles. After various formalities including obtaining the sanction for prosecution the respondent accused, a complaint was filed in the Court of JMFC, Pardi. One sample of curd was sent to the Food & Drugs Laboratory, Vadodara for the purpose of analysis. Report of the Public Analyst dated 20/3/1985 showed that the sample of curd contained 3.25% milk fat instead of a minimum of 6 % prescribed in law and thus the sample was sub-standard. In the course of trial at the request of the accused 3rd sample was sent to the Central Food Laboratory for analysis and report. The report of the Central Food Laboratory, Pune showed that milk fat was 2.6%. 3. A charge was framed and after recording evidence, the Trial Court found that the curd in question did not conform to the prescribed standard and reached the conclusion that the prosecution case was established beyond a reasonable doubt. Consequently the present respondent was convicted for the CR.A/180/1987 3/6 JUDGMENT offence punishable under section 7(1) and 7(5) read with section 16 of the Act. 4. Feeling aggrieved by the judgment of conviction, an appeal was preferred by the original accused and the Appellate Court after hearing the parties set aside the judgment & order of conviction passed by the Trial Court on the ground that the charge framed was defective in as much as the charge mentioned only the report of the Public Analyst which report had in fact been superseded by the report of the Central Food Laboratory and also because the sample was not taken properly and did not represent the entire curd. 5. We have heard Mr. Maulik Nanavati, learned APP for the State and Mr. Vyas , learned advocate for the respondent/original accused. We have also gone through both the judgments and the record & proceedings of the case. 6. Mr. Nanavati, learned APP has submitted that the Appellate Court below has committed an error in setting aside the judgment of conviction passed by the Trial Court on the ground that the charge framed by the Trial Court mentioned only the report of Food & Drug Laboratory, Vadodara and did not make any mention of the report by the Central Food Laboratory. He has fairly stated that there cannot be dispute on the issue of the report of Food & Drug Laboratory, Vadodara being superseded by the report of the Central Food Laboratory but a mere mention of earlier report in the charge, more particularly when both the reports state that the sample of curd was sub-standard, would not vitiate the trial. He has submitted that assuming that the charge was defective, but no such plea was taken before the trial Court, then also, the charge as framed clearly stating that the CR.A/180/1987 4/6 JUDGMENT respondent was found to be selling sub standard food item and the respondent was in no manner mistaken by the said charge in defending himself. We find substance in the argument of the learned APP. 7. The requirement of Section 222(1) is that the accused person must have a reasonably sufficient notice as to the case against him. The basic requirement in every criminal trial, therefore, is that the charge must be so framed as to give the accused person a fairly reasonable idea as to the case which he is to face. The Criminal Courts should take the precaution of framing charges with precision and particularity in order to ensure a fair trial; but it is not correct to say that a charge is invalid solely for the reason that it does not specify the report of the Central Food Laboratory. 8. At this stage it is pertinent to note that both the reports suggest that the food sample sent for examination was sub- standard. The record of the case discloses that the accused fully well understood the case against him and adduced all the evidence which he wanted to place before the Court. It is not even the case of the defence that the accused was misled in his defence on the ground that the charge did not mention the report of the Central Food Laboratory. In absence of any prejudice having been caused to the original accused and no objection having been raised as regards the defective charge before the Trial Court, we agree with the argument of Mr. Nanavati that the Appellate Court below has erred in holding that the trial was bad on this ground. 9. The other reason given by the appellate Court below for setting aside the conviction of respondent is that the sample was not taken properly by the Food Inspector. In milk and CR.A/180/1987 5/6 JUDGMENT milk products including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogeneous and representative. In the instant case, there is no evidence to establish conclusively that the sample of curd was taken by the Food Inspector after churning the contents of the entire vessel. Though a faint attempt has been made by Inspector Mr. Gamit to suggest that he did stir the curd in the earthen pot before drawing the sample, but we are not convinced. 10. In absence of cogent evidence to show that the sample drawn was representative of the entire curd or that the sample was a homogeneous one, having been taken after mixing the contents of the vessel, we do not think that the prosecution has succeeded in establishing its case beyond reasonable doubt. We are, therefore, of the opinion that Appellate Court below was fully justified in setting aside the conviction on this ground. 11. Lastly we may observe that about 25 years have passed since the date of incident and that the adulteration was only marginal. These two factors would certainly be a disincentive to interfere with the order, though we make it abundantly clear that we do not look upon with equanimity on offences under the Prevention of Food Adulteration Act because these offences have the deleterious effect playing havoc with the health and well being of a large segment of the society. 12. For the foregoing reasons, we do not wish to interfere with the verdict of the acquittal passed by the Appellate Court below. The appeal filed by the State therefore deserves to be dismissed and is accordingly dismissed. Bail bond of the CR.A/180/1987 6/6 JUDGMENT accused, if any, stands cancelled. [ BHAGWATI PRASAD, J ] [ S.R. BRAHMBHATT, J ] /vgn